Patna High Court
Harishanker Prasad And Ors. vs Bishwanath Prasad And Ors. on 27 August, 1964
Equivalent citations: AIR1965PAT33, AIR 1965 PATNA 33
JUDGMENT H. Mahapatra, J.
1. This appeal is directed against the order of the second additional Court of the Subordinate Judge, Muzaffarpur, in Title Suit No. 33/1 of 1956/1960 by which he recorded a compromise.
2. Sakhichand Sahu, the common ancestor ot the parties had five sons, Jagarnath, Raghunandan. Ramkhal, Dwarka and Badri Narain. Of them, Jagarnath and Dwarka are dead leaving no issue. Sakhichand Sahu had acquired large properties during his life and he executed a deed of endowment on the 3rd of April, 1900 in respect of some properties in favour of the deities Sri Ram Lachhuman Jankiji, Sri Radha Krishnaji and Shiva Girjaji and others. In that deed he stipulated that during his lifetime he would act as manager and Shebait and after him his eldest son Jagarnath Prasad Sahu would be the Shebait and work in consultation with his fourth son Dwarka Prasad Sahu. He further provided that Jagarnath will be competent to authorise anyone of Dwarka Prasad and Badri Narain to be Shebait after him and that Shebait would nominate his succeeding Shebait in consultation with the members of the family of Sakhichand. Badri Narain became the Shebait after Jagarnath. According to the plaintiffs, he appointed plaintiff No. 1, one of his sons, to be the next Shebait by a deed of appointment dated the 14th October 1955. Defendant No. 1, another son of Badri Narain, however, claimed that he had been appointed as the next Shebait by a resolution passed in a meeting of the members of the family as he was the oldest and ablest of all the sons of Badri Narain. This dispute led the plaintiffs to institute the suit. Four sets of defendants were impleaded; Badri Narain's sons by his first wife were defendants first and second parties, defendants 8 to 14, descendants of Raghunandan and Ramkhal were defendants third party and defendants fourth party were the tenants. Plaintiff's own brother and mother joined in the suit as plaintiffs 2 and 3.
3. A petition of compromise was filed in the trial court on the 9th of May 1957 by the plaintiffs and all the defendants except defendant No. 14 and defendants fourth party. On that day the plaintiffs applied to expunge the defendants fourth party from the suit. On the 28th of May 1957 defendant No. 14 filed an objection against recording of that compromise. So also objections were filed by defendants 8 to 13 but defendants 12 and 18 withdrew their objections later. Defendant No. 14 was expunged by an order of the court passed on the 30th August 1957 on an application filed by the plaintiffs and defendant No, 1, Thus the only objection to the recording of compromise that remained for consideration by the Court below was by defendants 8 to 11. They raised two grounds; one was that they had signed the petition of compromise without reading its contents and at a time when the defendant No. 8's child was seriously ill. The other ground was that the terms of the compromise were unlawful inasmuch as it came in conflict with the terms of the deed of endowment.
4. The trial court held against them on both the points and passed order to record the compromise. Against that, defendants 8 to 11 have come in appeal.
5. Learned counsel for the appellants faintly contended against the finding on the first ground of objection. The evidence disclosed that the infant child of defendant No. 8 was about six months old and succumbed at about 4 O'clock on the 7th May 1957. It is not said that the compromise petition was signed after that. All of the defendants 8 to 13 had signed the compromise. The trial court was justified to discard the case that all of them were in a distracted mind so as not to know the contents of the compromise petition which they signed. 6. Learned counsel's emphasis was on the second ground of objection. He urged that the court must be satisfied that the compromise is lawful before it can record it. In this ease, the terms of the compromise were unlawful, according to him, as they were opposed to the terms of the deed of endowment, public policy and to the rights of third parties like defendant No. 14 and female members of the endower's family. He developed his point by saying that the mode of devolution of the shebaitship had been prescribed by the donor Sakhichand in his deed of endowment but the compromise departed from that inasmuch as it provided that both plaintiff No. 1 and defendant No. 1 would be permanent Shebaits followed by their heirs and the endowed property would be divided between the two, each not being liable to account to the other. By this provision, the right of other members of the family to be consulted and in some circumstances to appoint the Shebait in future was curtailed. The immunity from accountability was also opposed to public policy inasmuch as a Shebait being like a trustee, is accountable to the beneficiaries or his co-Shebait, if any. He further contended that by the division of the properties between the two, plaintiff No. 1 and defendant No. 1, the interests of the deities for whom the endowment was created were seriously affected and by that, the purpose of the endowment was defeated.
7. Rule 3 of Order 23, Civil Procedure Code, which provides for recording a compromise states as follows:
"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, at where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter ot the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit."
Two important things are noticeable from the above; the Court is to be satisfied that the suit has been adjusted and that the compromise is lawful. On such satisfaction the Court has to record the compromise, There is no option in the matter In the present case all persons that were left as parties to the suit executed the compromise The subject-matter of the suit was the right ot a Shebait to manage the endowed property The terms of the compromise adjusted that wholly, by saying that both the plaintiff No. 1 and defendant No. 1 would manage those properties as Shebaits, There can be thus little doubt that the whole suit was adjusted by all the parties concerned. The other question is, if the compromise is lawful and learned counsel's contention is that it is not so. We have to see if the consideration or object ot the agreement in the compromise is lawful and for that purpose, Section 23 of the Indian Contract Act offers the proper guidance. It states:
"The consideration or object of an agreement is lawful, unless-
it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void."
Eleven illustrations are given under that section. The first two elements in the section are not apprehended here as none of the considerations in the agreement of compromise is forbidden by law or will defeat any provision of law or is fraudulent. Learned Counsel contended that the agreement involves an implied injury to the property of other! persons. He referred to the deed of endowment to show that the maker of the endowment had provided that all members of his family will be consulted at the time of nomination of a Shebait by the ruling Shebait after Jagarnath Prasad. Either the unanimous or majority opinion of the family members will guide the nomination. In case of Shebait is not nominated by a ruling Shebait. one who commands majority opinion of the members of the family will become Shebait. This provision about consultation with the members of the family can hardly be said to be of the nature of property on their part The real right of nomination of a succeeding Shebait has been left with the ruling Shebait. That is the mandatory part of the provision in the deed. The other condition that the ruling Shebait will consult the members of the family is merely of a directory nature.
Absence of such consultation in a particular case will not render the appointment of a Shebait invalid. Whether all or most of the members of the family are in accord with the proposed nomination is, at the most, to be ascertained by the ruling Shebait There is no particular method provided in the deed for indicating such opinion or the recording the result of such opinion. What members of the family would say on such occasions will be only by way of advice. That appears to me to he the intention of the maker of the endowment as revealed by the text of the deed. In Article 320 Clause (3) of the Constitution of India it has been provided that the Union or the State Public Service Commission, as the case may be, shall be consulted on certain matters by the Union or the State Government and it shall be the duty of the Commission to advise on any matter so referred to them. This constitutional provision which is couched m an apparently mandatory language employing the word "shall" has been held by the Supreme Court to be of a directory nature and the absence of or irregularity in such consultation will not result in any invalidity (see State of U, P. v. Manbodhan Lal Srivastava, (S) AIR 1957 SC 912). The consultation with or the advice of the members of the family about the nomination of a SUcceeding Shebait can hardly be taken to be of a higher level than that of the Public Service Commission, It cannot be equated even with a legal right such as that of franchise. It cannot certainly be a property right. Office of Shebait is treated as a property but mere consultation for filling such office is not the same. It is significant that the particular provision under Section 23 refers to ''injury to property" and not to any right. For a situation where a ruling Shebail will not make a nomination before his death, the provision in the deed is as follows:
"If in future the Shebait for the time being fail to appoint a Shebait for some reason, in that case the person, who shall command majority of opinions of the members of the family of me, the executant, and shall be deemed fit for the work of Shebait will be appointed as Shebait."
Here again it is the opinion of the majority to be assessed in any rough and ready manner by one who assumes the Shebaitship. If the terms of the compromise affect or displace the chances of consultation with the members of the family that will not amount to injuring the property of any person At the most it may affect a right of theirs, if at ail. tn that view, there is nothing unlawful in the agreement of compromise.
8. It is worthy of note that in the, management of the properties, the Shebait is not required to consult or be guided by any of the members of the family It was prescribed only for Jagarnath during his lifetime to work as a She-bait in consultation with and under the advice of the another brother Dwarka Prasad Sah. The members of thy family have been given the power to remove a Shebait if he neglects the performance of the duties of the deities or mismanages the endowed properly in any way, and in that ease, they can appoint another Shebait from among the members of the family. This is the only right which appears to have been reserved for the members of the family in ease of an emergency of that nature. This has not been affected in any way by the agreement of compromise.
9. At another place of the compromise petition (paragraph three) it has been stated:
"Therefore, with the consent of each party, plaintiff No. 1 and defendant No. 1 have been appointed Shebait permanently of the deities present in the aforesaid temple in respect of the properties under their respective charge. ....."
Learned counsel objected and urged that this is opposed to the essence of the endowment where only one Shebait was contemplated. Plaintiff No. 1 and defendant No. 1 claimed in the suit to be, the exclusive Shebait. In the opening paragraph of the compromise petition they stated;
"the parties have at the advice of the well wishers, agreed irrespective of their claim and statement that the management of the estate of Sri Thakurji be made by and through plaintiff No. 1 and defendant No. 1 so that the dispute-between them may be avoided and the estate of Sri Thakurjee may be benefited."
For the purpose of such management the proper ties were divided into two schedules and the compromise provided:
"The management of the properties mentioned in the schedule No. 1 at the foot of this compromise petition will be under plaintiff No. 1 and until plaintiff No. 1 will attain majority, its management will be done by and through plaintiff No. 3, the mother and guardian of plaintiff No. 1. The management of properties mentioned in Schedule No. 2 will be under defendant No. 1 and the arrangement of Ragbhog, Seva, Samaiya, celebration and festivals of the aforesaid deities will be done by each of the two parties viz, plaintiff No. 1 and defendant No. 1 every alternative year from the income of the properties under each of them in the manner as have been hitherto done."
These provisions in the compromise make it clear that the question which of the two (plaintiff No, 1 and defendant No. 1) was the Shebait was left undecided for their lifetime but the management of the properties and Seva Puja of the deities were agreed upon to be done by both of them in a particular manner. That, in no way, conflicts with the terms of the endowment. It is not unusual for a dispute involved in a suit to be amicably settled in that way. In that context, paragraph 3 of the compromise petition is to be taken. What has been staled about the appointment of the plaintiff No. I and defendant No. 1 as Shebaits can only mean that they will manage the properties indicated m the respective schedules during their lifetime as it they were Shebaits in respect thereof, though which of them was actually the appointed Shebait is left undecided. There was thus no appointment of one or two Shebaits.
10. The other part of paragraph 3 which is as follows came for criticism;
. . .and between plaintiff No. 1 and defendant No. 1 no eight under rule of survivorship will be available and after plaintiff No. 1, his successor will be plaintiff No. 2, if he remains alive and the heirs of plaintiff No. 1, if plaintiff No, 2 dies in the lifetime of plaintiff No. 1 then the heirs of both the plaintiffs. Similarly after defendant No. 1 his successor would be his next heirs or one whom defendant No. 1 will nominate and this procedure will continue for good".
By this, the succession to the office of Shabait or at least to the management of the endowed properties is laid down for future after the lifetime of plaintiff No. 1 and defendant No. 1. In either case, this will be in clear violation of the principle of devolution of the office of the Shebait prescribed in the deed of endowment.
The right of nomination of the succeeding Shebait rests with the ruling Shebait and that is an integral part of the office of Shebait in the present case. During the lifetime of a particular person claiming to be the Shebait, there may be an arrangement about the management of the properties but after him, cither it will be a case of no appointment of a succeeding Shebait or a proper nomination of the same. The terms of the endowment will govern such situation as it may then arise. The future management or the next person to be the Shebait was not the subject-matter of the suit. The dispute involved in it was, which of the two (plaintiff No. 1 and defendant No. 1) was the properly appointed Shebait. In that view, what was outside the scope of the suit will not form a part of the decree even if it is included in the compromise. This part of the agreement which concerns the office of the Shebait in future involves an injury to the right to the office of Shebait which is like a right to property of others. In that view, that will be unlawful and cannot be recorded,
11. Learned Counsel's comment also related to paragraph 2 of the petition of compromise where it was stated:
"Plaintiff No. 1 or his guardian will not be competent and have any right to demand any account from defendant No. 1 or verify it and will not have any right overtly or covertly to interfere or intermeddle with the management of property under him. Similarly defendant No. 1 will not be competent or has any right to demand the account from plaintiff No. 1 and his guardian and to verify it, and shall not be competent to intermeddle and interfere in the management of the property under him."
He argued that this is opposed to public policy; if plaintiff No. 1 and defendant No. 1 act as Shebaits they, like trustees, must be accountable to the beneficiaries and to each other. This condition in the compromise is to prevail against the two persons and no more. In case of mismanagement by either or both of them, the right of the members of the family to remove them is there. If both the persons in management decide upon not interfering with each other's management or looking into the accounts of the other, that is an internal arrangement between them which they could, if they would, also do with immunity without expressing it in the compromise. How the income of the properties will be utilised and the surplus, after the necessary expenditure, is to be converted have been provided for in the endowment deed and whosoever manages the property will be bound by that. Violation in that respect will come under the powers of check and action by the members of the family. This provision in my view, therefore, is neither illegal in the sense of being in conflict with the terms of the endowment nor unlawful as opposed to public policy.
12. Another attack was upon the agreement that the arrangement of Ragbhog, Seva Samaiya, celebrations and festivals of the deities will be done by each of the two parties (plaintiff No. 1 and defendant No. 1) every alternate year from the income of the property under each of them in the manner as have been hitherto done. Learned counsel contended that by this arrangement, the income of hair of the properties in one year may not be sufficient to carry out the duties of the deities in a proper manner. There is no material to support this apprehension. On the other hand, the agreement provides that all such duties will be done by each of the two parties in the alternate year as those duties were being done before. It is clear from that that the expenses for the Seva Puja and festivals of the deities will be sufficiently met from the income of one of the Scheduled properties during a year. For extraordinary expenses it has been provided in paragraph 5 that both parties (plaintiff No. 1 and defendant No. 1) shall be liable to meet them in equal shares irrespective of that term.
13. On a consideration of the whole petition of compromise and the agreements contained therein, I am of the view that it is not unlawfull in any way except the latter portion of paragraph 3 which I have already quoted. Therefore, the compromise, but for that part, will be recorded.
14. Learned counsel's contention was that the original defendant No. 14 was wrongly expunged and the intention for doing so clearly proves the unlawfulness of the compromise. Soon after an objection against the compromise was filed by defendant No. 14 (he was not a party to the compromise), the plaintiffs and defendant No. 1 made a joint petition to the Court asking defendant No. 14's name to be expunged from the record. On that, the order was passed, on the 30th August, 1957. If the plaintiffs took the risk, if any, of expunging a defendant from their suit, that cannot be a ground of unlawfulness of the compromise. Whether the suit would be maintainable without defendant No. 14 is another matter. In any case, he will not be bound either by the terms of the compromise or by the decree that may be passed on that pasis. Learned counsel further argued that the female members of the family should be joined is parties to the suit and the compromise because, according to him, their position is the same as that of the appellants. From the deed of endowment-it does not appear that Sakhichand Sahu had the slightest intention of including the females while speaking of the members of his family in connection with the endowment.
The document was in the year 1900. Keeping in mind the social conditions as prevalent then among the Hindus of the class to which Sakhichand belonged one has to take a reasonable view of the intention of the maker of the endowment. We should not interpret that in the light of the fast changing pattern of the society under constitutional mid statutory changes about the status of women in the society at present. Assuming that the females could be included us members of the family of the founder of the endowment as stated in the deed of endowment, they would not be bound by the compromise as they were not parties to the suit and their position will be the same as the original defendant No. 14 who was later expunged. I do not find any merit in this contention.
15. For the appellants, it was also urged that the deities should be made parties to this compromise and they should be represented by a disinterested next friend to be appointed by Court. The basis of this argument is that the interest of the deities will be affected by the terms of the compromise and they should be heard before the compromise a recorded. From the discussion already made, I lave found that in no way the interests of the deities arc likely to be injured by any agreement in the compromise that will be recorded. The deities were not parties to the suit. If the suit itself could be disposed of in regard to the appointment of a Shebait and management of the properties by him, I do not see any justifying reason why in the adjustment of the suit by a compromise the deities will have to be brought in. Learned counsel referred us to the case of Pramatha Nath Mullick v. Pradhumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139). The facts of that case were entirely different, A Hindu had consecrated an idol as a household deity. He bequeathed the deity with the rest of the property belonging to him to his adopted son, directing him to maintain me worship of the deity.
The adopted son built a Thakurbari (a sort of temple) and dedicated that to the deity by a dead of trust under which he provided that the idol will not be removed therefrom unless another suitable Thakurbari was provided. On the death of the adopted son, his three sons effected a partition between themselves under the award of an arbitrator but the Thakurbari remained joint with the provision of annual turns of performing the worship by the three brothers. One of them claimed a declaration in the suit that during his turn of worship, he had a right to remove the idol to his own house which was opposed by the other two brothers on the ground that such right was excluded by the deed executed by their father the adopted son of the original conseorator of the idol. The trial court thought that the adopted son was not the founder of the worship, the deity having been installed by his father and he could not impose a condition in his deed of dedication. In that view, the plaintiff was given the declaration. The appellate Court took a contrary view holding that the condition against removal of the idol from the Thakurbari was for the benefit of the idol, and, therefore, binding.
Lord Shaw delivering the judgment ot the Judicial Committee on further appeal, observed, after considering the relevant portions of the deed of trust executed by the adopted son, that there was no dedication of the idol as property, nor of the idel at all. It was a dedication of real estate in trust for the idol, recognised as a legal entity, to which such dedication might be made. The term of prohibition against the removal of the Idol from the Thakurbari until another Thakurbari of the same or a larger value was constructed was not taken to be absolute and of binding character against any of the future trustees. In that context, Lord Shaw thought that the will of the idol in regard ro location will have to be respected and if it will be thought that the family should change its location in the course of a proper administration of his worship, the will of the idol itself expressed through his guardian must be given effect to. In that view, the Judicial Committee in that case thought that it would be in the interests of all concerned that the idol should appear by a disinterested next friend appointed by the Court and a scheme should be framed for the regulation of the worship of the idol.
Accordingly the case was remitted to the High Court after setting aside the decrees of both the Courts below. It is to be noted that no question of recording a compromise was involved in that suit According to the nature of that litigation, the idol was held to be a necessary party and in that view the case was remanded. Secondly, the change of place of worship was the main dispute and in that the idol was directly involved. Such circumstances are not present in the present case.
16. Another case cited was Kanhaiya Lal v.
H amid All, 60 Ind App 263: (AIR 1933 PC 198 (1) X ere, the case was remanded by the Judicial Committee in the following circumstances: Plaintiff's suit was for possession or a plot of land over which the defendants had built a Thakurbari and Installed an idol therein. The Judicial Committee thought that what would be the effect of the dedication of the land to the Idol was a question Involved in that suit. In that view, they set aside the decrees and remitted the case to the Chief Court for directions for a new trial impleading the idol as a party. I should mention here that in the trial court, the plaint was asked to be amended by impleading the idol and the trustee and by raising a claim drat the execution of the deed of dedication had the effect of extinguishing the rights of the defendants. The Munsif allowed that claim to be raised but did not permit the joining of the idol or trustee to the suit. The facts by themselves are distinguishable from the present case.
17. In the case of Hukumchand v. Raja Ran Bahadur Singh, AIR 1919 Pat 146 the title to Parasnadi hill was In dispute between two parties while the matter was pending in appeal. The Sitambari Community of Jains represented by one Mani Bhai wanted to purchase whatever interests both the parties to the litigation had over the hill subject to the result of the appeal. The Court accorded its sanction to such transfer and one party executed a deed of sale and the other a permanent lease in favour of the transferee. A compromise petition by the parties had been filed in which it was provided that all questions of ownership and possession of the respective parties should remain undetermined between the parties though they would transfer, one by conveyance and the other by a permanent lease, their right, title and interest in Parasnath hill to the representative of the Sitambaris. In the deed of conveyance, the purchaser covenanted to take all necessary steps to get his name substituted in place of the Raja of Palganaj (transferor) as respondent in the appeal and he had his own right to defend the action and indemnify the vendor and the Paliganf estate against all costs and damages arising out of the litigation after the 1st January 1918.
The purchaser was added as a party respondent along with the original respondent In that background, the question arose whether the compromise should be recorded and a decree passed in accordance therewith. The Court held that though the transfer was subject to lis pendens under Section 52 of the Transfer of Property Act, in the circumstances of the case the Court should be satisfied that the compromise was not a collusive agreement arrived at with the object of defeating the purchaser. He (purchaser) should not be denied the right of defending the action or setting up in defence that would be open to the Raja of Paliganj.The contesting defendant (purchaser) was allowed to place the merits of the case as a respondent to the appeal. The interest of the pendente lite transferee cannot be equated with the interests of the deities in the present case.
18. In the case of Malchand Boid v. Osman All, AIR 19B4 Cal 159 the plaintiff brought a suit to., enforce a mortgage security executed by the defendants on the 20th June 1914. Defendants second party were impleaded as second mortgagees as another mortgage was executed in their favour on the 17th September 1914. The trial court decreed the suit in part. The plaintiffs (first mortgagees) preferred an appeal and the puisne mortgagees also filed a cross-objection. During the appeal a petition of compromise was filed by the mortgagors and the first mortgagees settling their difference. The effect of that compromise was to increase the amount payable under the decree to the first mortgagees. That itself was detrimental to the interests of the second mortgagees who were defendants second party but had not joined the compromise. The change in the decree of the trial Court that was sought by the compromise, not by all the parties but by two of them, could not be binding upon the second mortgagees. In that sense, there would have been two variant decrees about the sale of the mortgaged properties and distribution of the sale proceeds. The equity of redemption of the first mortgage vested not merely in the mortgagor but also in the second mortgagees and that could be effected either by an adjudication of a Court or by an agreement of all the parties interested. For these two reasons and for the obvious fact that the interests of the second mortgagees were seriously affected by the terms of the compromise between the other two parties, the Court refused to record the compromise and held it to be unlawful. The instant case before us cannot be compared to that case in any way.
19. A compromise of a disputed claim stands upon a different footing from a transfer of a vested interest. It is an agreement to put an end to disputes and terminate or avoid further litigation and in such cases the consideration which each party receives is not really a sacrifice of a right but abandonment of a claim. If there is a supposition of right in both parties and the right is a doubtful one, an agreement of compromise entered into by the parties is binding on them irrespective of the fact whether in truth the properties in dispute (in the present case the Shebaitship) belonged to one party or the other (see Smt. Sabitri Thakurain v. Mrs. F. A. Savi, ILR 12 Pat 359: (AIR 1933 Pat 306). If a compromise is not unlawful on the face of it, it should ordinarily be recorded, once the Court is satisfied that it adjusts the suit partly or wholly. What will be the far-reaching consequence of the agreement of compromise upon others, as a result thereof, cannot be gone into in a proceeding under Order 23 Rule 3 Civil Procedure Code particularly when such other persons are not parties to the suit in which the compromise is made. A compromise remains essentially an agreement although the command of the Court is super-added by way of recording the same.
20. A useful reference may be made to the case of Kashi Prasad v Mt. Satwari, AIR 1945 All 166 where a suit was instituted on the allegation that the defendant had committed a breach of a private trust of which he was one of the trustees. The plaintiff was a beneficiary. She and her husband brought a suit for removal of Kashi Prasad from trusteeship and for an order of accounts from him. Ultimately, the parties to the suit filed a compromise. A reversioner of the founder of the trust filed an objection against the compromise on the ground that it was unlawful. The Court ruled out that because he was not a beneficiary, at any rate he was not a party to the suit. But the trial Court, however, took the view that the parties had agreed that a house which it considered to be the trust property should be deemed to be the property of Kashi Prasad, one of the trustees. In that view it directed that paragraph of the compromise petition to be struck off. The High Court of Allahabad held, on appeal against that, that on the face of the compromise there was no illegality in the agreement between the parties in regard to that house If the parties agreed that that building was not a part of the trust properties, it was no concern of the Court; nor was it necessary tor the Court to go into questions of fact and to hold that the property was a trust property in a proceeding of that nature. It was a case of a private trust and not a public trust. The decree based upon the compromise in that suit would bind no one but the parties Their Lordships observed:
"When a compromise or an agreement has been set up, the Court must satisfy itself that if has been made, and once it has been made, it must be recorded, provided it is lawful on the face of it."
I am thus of the view that in the present case the compromise should be recorded except the last portion of paragraph 3 to which I have already referred where the succession of the heirs of plaintiff No. 1 and defendant No. I has been stated. Since the trial Court ordered the recording of the whole of the compromise that will be modified to this extent.
21. The appeal is, therefore allowed in part but in the circumstances of the case and in view of partial success of both the sides in this appeal, there will be no order for costs of this Court A.B.N. Sinha, J.
22. I agree