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Appeal No. 3698 of 1991.
From the Judgment and Order dated 1.11.1990 of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 in Suit No. 309 of 1972.
Arun Jaitley, R.F. Nariman, R. Karanjawala, Mrs. M. Karanjawala, Ms. Nandini Gore and Ms. Aditi Choudhary for the appellant.
191 V.A. Bobde, U.A. Rao and B.R. Agarwala for the respondents.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
The only question which arises for consideration is as regards the construction of Order XXIII rule 3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amend ment Act, 19%, bracketing the newly added words: 23., R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise, (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of 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 parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.
An agreement or compromise which is void or voidable under the , shall not be 192 deemed to be lawful within the meaning of this rule.
Mr. Arun Jaitley, appearing for the appellant, says that the High Court was wrong in holding that, notwithstanding the amendment of 1976 inserting the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person.
Any such construction would do violence to the provision as amended in 1976.
He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person.
The expression 'parties ', he contends, means only parties and none else.
To read 'counsel ' into that expression, as done by the High Court, is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency.
This cannot be done.
The legislature, on the other hand, made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties.
Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise.
A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution.
Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement, and allow a decree to be passed in terms thereof, the legislature would have said so by further adding the words 'or their counsel '.
In the absence of any such expression, it cannot be presumed that the legislature intended more than what it said and that 'party ' included counsel.
This argument, Mr. Jaitley says, is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties, but extending beyond the subject matter of the suit.
Such a wide power to compromise was most unlikely to be left in the hands of counsel, and it is, therefore, necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction.
Mr. V.A. Bobde appearing for the respondents, on the other hand, submits that it was always understood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, there fore, has express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise.
In the absence of any such limitation or restric tion of his authority, counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands.
Any such decree, he says, is perfectly valid.
Mr. Bobde submits that in the absence of express words to the contrary, 'party ', in the context of proceedings in court, must necessarily include his recognised agent or pleader.
This construction is warranted by the provisions of Order III, C.P.C. That this has been the consistent view adopted by courts in the construction of the expression 'party ' in the context of proceedings in court is clear from the decisions of courts, and it is most unlikely that the legislature would have, by the amendment of 1976, limited the scope of 'party ' so as to exclude the traditional role of the recognised agent or counsel.
The legislative drafts men are presumed to know the law of the land as it stood then, and, if they had intended to deviate therefrom, they would have explicitly stated so rather than leave it to future judicial construction.
The Statement of Objects and Reasons for the amendment, he says, does not support the view canvassed by the appellant.
Sub clause (iii) of clause 77 of the Statement of Ob jects and Reasons concerning the C.P.C. (Amendment) Act, 1976 states: is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties.
This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. . . . . . . .
In view of the words 'so far as it re lates to the suit ' in rule 3, a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the, terms of the decree relating to the matters outside the suit can be enforced only by a separate suit.
The amendment seeks to clarify the position.
" The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements.
The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit.
The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise.
The fundamental question is, in the absence of any contrary indication in the Statement of Ob jects and Reasons, can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression 'party ' when it has always been understood, as explicitly stated in Order 1II rule 1, that appearance of a party in court may be in person or by his recognised agent or pleader.
In the absence of any provision to the con trary, can it be stated that the legislature, when using the expression 'parties ' in rule 3 of Order XXIII, limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury 's Laws of England, 4th Ed. Vol.3, paras 1181 & 1183, as follows: "1181.
Counsel 's authority.
At the trial of an action, counsel 's authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the con duct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross examining or not cross examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consent ing to a reduction of damages.
The client 's consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.
If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on . . " The implied authority of counsel in England is, howev er, confined to matters failing within the subject matter of the suit.
In the absence of express authority, counsel cannot enter into compromise on collateral matters.
"The authority of counsel to compromise is limited to the issues in the action: a compro mise by counsel affecting collateral matters will not bind the client, unless he expressly assents; and it may be that a barrister has no authority to reach a binding settlement or compromise out of court. "(Halsbury ibid) 195 A compromise is, however, not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties.
"A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion, for example that the terms accepted had already been rejected by the client.
Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be withdrawn.
Where, acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be, there is no agreement on the subject matter of the compromise, and the court will set it aside.
But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence? (Halsbury, ibid, para 1183).
Counsel 's consent in certain circumstances such as duress or mistake may not bind the client.
"If counsel 's consent is given under duress, the client will not be bound, as when counsel, acting for a client alleged to be of unsound mind but believing him to be of sound mind, consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement.
A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client, unless it is sanctioned by the court as being for the benefit of the client.
The court cannot, however, enforce a compromise on a minor against the opinion of his counsel." (Halsbury, ibid) One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford ; at 922; S.C. 29 L. J. (E.x) 382.
Delivering the judgment of the Court, Pollock, C.B., stated: ".
We are of opinion, that although a coun sel has complete authority over the suit, the mode of conducting it, and all that is inci dent to it such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as,.
in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial we think he has not, by virtue of his retainer in the suit, any power over matters that are collat eral to it . . ".
In Matthews vs Munster, at 144, Lord Esher M.R. stated: .
The instances that are given shew that one of the things that counsel may do, so long as the request of the client to him to act as advocate is in force, is to assent to a verdict for a partic ular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion 'conduct of the cause and all that is incidental to it. ' If the client is in Court and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the course proposed.
This case is a still stronger one, for the client was not present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent.
This the Court will not do, and this appeal must be dismissed.
" See also Rondel vs Worsley, [1965] 1 Q. B. 443, 502, Per Lord Denning M.R.
If this is the position of counsel in England, Scotland and Ireland, is his position the same in India in the con duct of cases in Court ? That the answer is affirmative, there is high judicial authority.
In (Babu) Sheonandan Prasad Singh & Ors.
vs Hakim Abdul Fateh Mohammad Reza & .Anr., AIR 1935 PC 119, 121, Lord Atkin, speaking for 197 the Board, states: ".
As was laid down by this Board in 57 IA 133 (AIR 1930 PC 158) counsel in India have the same implied authority to compromise an action as have counsel in the English Courts.
But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined.
In the first instance the authority is an actual authority implied from the employment as counsel.
It may however be withdrawn or limited by the client: in such a case the actual authority is destroyed or restricted; and the other party if in igno rance of the limitation could only rely upon ostensible authority.
In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party.
" Lord Atkin emphasises the need to rely on express au thority, rather than implied authority, particularly because of easier and quicker communication with the client.
He says: ".
In their Lordships ' experience both in this country and in India it constantly hap pens, indeed it may be said that it more often happens, that counsel do not take upon them selves to compromise a case without receiving express authority from their clients for the particular terms; and that this position in each particular case is mutually known between the parties.
In such cases the parties are relying not on implied but on an express authority given adhoc by the client . . ".
(ibid, page 121) However, collateral matters were understood to be beyond the scope of compromise.
Lord Atkin says: "If the facts are as their Lordships assume, the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties, but it would in any case be a matter in respect of which the Court in pursuance of 198 O. 23, R. 3, should not make a decree." (Page 122) Referring to the role of counsel in India and comparing him with his counterpart in Britain, Lord Atkin in Sourendra Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 PC 158, says: " . .
Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India.
The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India.
It is a power deemed to exist be cause its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
" Counsel 's power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court.
Lord Atkin observes: "The advocate is to conduct the cause of his client to the utmost of his skill and under standing.
He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimina tion.
These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail.
But in addition to these duties, there is from time to time thrown upon the advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability.
Often the decision must be made at once . . "(ibid, page 161) Emphasising the apparent authority of counsel, and the raison d 'etre of such authority being the paramount interest of his client, and not an appandage of office, Lord Atkin states: "The apparent authority is derived from the known existence of the implied authority . . 199 First, the implied authority of counsel is not an appandage of office, a dignity added by the Courts to the status of barrister or advocate at law.
It is implied in the inter ests of the client, to give the fullest bene ficial effect to his employment of the advo cate.
Secondly, the implied authority can always be countermanded by the express direc tions of the client.
No advocate has actual authority to settle a case against the ex press instructions of his client.
If he con siders such express instructions, contrary to the interests of his client, his remedy is to return his brief.
Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England, Scotland and Ireland . . ".
(Page 161) Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
Referring to section 375 of the Code of Civil Procedure (Act XIV of 1882), (similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976), Lord Buckmaster, in Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79, states: " . .
In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement . . although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement.
This in fact is what the decree did in the present case.
It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent its being received in evidence of its con tents".
(Page 81) In Ram Juwan vs Devendra Nath Gupta, AIR 1960 Madhya Pradesh 200 280, the High Court states: "Where a consent decree contains terms that do not relate to the suit . . such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit".
(Page 282) See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi, AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456.
In Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr., , the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties.
The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties.
In the absence of any such ground, the consent decree is bind ing on the parties.
Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients.
Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs A.N. Menon, AIR 1968 Kerala 213, K.K. Mathew, J. (as he then was) observed: "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel.
In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary impli cation.
In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage.
It is on a par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement." (p.215).
About the special position of the advocate, the learned Judge stated: Counsel has a tripartite relationship; one with the pub lic, another with the court, and the third with his client.
That is a unique feature.
Other professions or callings may include one or two of these relationships but no other has the triple duty.
Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out 201 as practicing, however, unattractive the case or the client." (p. 216) See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17; Govindammal vs Marimuthu Maistry & Ors., AIR 1959 Mad. 7 and Laxmidas Ranchhoddas & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Born.
These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand & Ors.
[1975] Supp.
SCR 336.
Referring to a number of decisions on the point, V.R. Krishna Iyer, J. observes: " . .
Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers.
Of course, we hasten to enter a caveat.
It is perfectly open to a party, tike any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters, the choice being his, as the master.
If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief.
But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client . . "(Page 346) See also Monoharbahal Colliery Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632.
After the amendment of 1976, a consent decree, as seen above, is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties.
The argument of the appellant 's counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person, because the responsibility for compromising the suit, including matters falling outside its subject matter, should be borne by none but the parties themselves.
I1 this contention is valid, the question arises why the legislature has, presumably being well aware of the consistently fol lowed practice of the British and Indian Courts, suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating, but by implication? Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent, as traditionally understood in the system of law and practice followed in India and other 'common law countries ' without expressly and directly so stating? There is, 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 6.2.1973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of 'agents and pleaders ' of Order III, C.P.C. was in any manner altered.
There is no warrant for any such presumption.
It is a rule of legal policy that law should be altered deliberately rather than casually.
Legislature does not make radical changes in law by a sidewind, but only by measured and considered provisions '.
(Francis Bennion 's Statutory Interpretation, Butterworth, 1984, para 133).
As stated by Lord Devlin in National Assistance Board vs Wilkinson, "It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion." Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of law '.
See Crawford 's Statutory Construc tion, para 254.
The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive con struction of the amended provisions.
The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
There is no reason to assume that the legislature in tended to curtail the implied authority of counsel, engaged in the thick of proceedings in court, to compromise agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract gener ally, the legislature does not interfere except when war ranted by public policy, and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active.
Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the 'civil law ' of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant.
(See Rene David, English Law and French Law Tagore Law Lectures, 1980). 'The civil law ' is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language and there is no indication,.
whatever, that Parliament was addressing itself to the task .of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration.
The Indian legal system is the product of history.
It is rooted in our soil; nurtured and nourished by our culture, languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, enquiry and good con science which arc indeed the hallmark of the common law.
In the words of M.C. Setalvad: " . . the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people.
The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured.
Yet they bear the unmistakable impress of their origin.
The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England.
In it one sees English law in the distant perspective of a new atmosphere and a strange clime.
" Speaking of the common law in the wider sense, the learned author continues: ".
But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in estab lishing, maintaining and developing the judi cial system.
When, therefore, I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law.
In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions, some of the princi ples underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice." The Common Law in India, 1960 The Hamlyn Lectures, Twelth Series, pp.1 4.
After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the law courts remained fundamentally un changed, except in matters such as the abolition of appeals to the Privy Council, the constitution of the Supreme Court of India as the apex court, the conferment of writ jurisdic tion on all the High Courts, etc.
The concept, structure and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law.
In our own system of judicial administration, if strains have developed and cracks have appeared by the stresses and 2pressures of the time; if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose.
Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists, sociologists and political scientists to ponder over.
So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not express ly, but impliedly reduced counsel 's role or capacity to represent his client as effectively as in the past.
On a matter of such vital importance, it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel 's capacity or status or effectiveness.
In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judg ment.
One reason, indeed, for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate.
No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them . . (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan, AIR ; Smt.
Mohan Bai vs Smtjai kishan & Ors., AIR and by the Gujarat High Court in Nadirsha Hirji Baria & Ors.
vs Niranjankumar alias Nireshkumar Dharamchand Shah & Ors.
, A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram.
vs Dr. Narsipalle Vasundara, AIR 1983 Andhra Pradesh 32, and it does not commend itself to us.
We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay.
In these days of easier and quicker communication, such contingency may seldom arise.
A wise and careful coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies in order that neither his authority nor integrity is ever doubted.
This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres tige and dignity of the legal profession.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents.
Any 206 such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.
To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non resident persons.
It has always been universally understood that a party can always act by his duly authorised representative.
If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.
Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.
If the legislature had intended to make such a funda mental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.
Accordingly, we are of the view that the words 'in writing and signed by the parties ', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order II1 rule 1 C.P.C.: "any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person".
(emphasis supplied) In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be exe cuted.
The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
As stated by this Court in Shankar Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Son takke & Ors.; , ".
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
The com 207 promise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata '.
" (Page 355) S.R.
Das, C.J., in Sailendra Narayan Bhanja Deo vs The State of Orissa, ; , states: ". a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case . ".
(Page 351) A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
As stated by Spencer Bower & Turner in Res Judicata Second Edition, page 37: "Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .
Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata . . . . ".
See also Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuccess ful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court.
Accordingly, we see no merit in this appeal.
It is dismissed.
However, in the circumstances of the case, we do not make any order as to costs.
V.P.R. Appeal dismissed.

Output:
Before this Court, the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant 'in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties, and that in the ab sence of any challenge against the order made under Order XXI, rule 23, Civil Procedure Code, allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The appellant contended that the High Court was wrong in holding that, notwithstanding the amendment of 1976 insert ing the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person, and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution.
The respondents submitted that it was always under stood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, therefore, had express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises.
188 Dismissing the appeal, this Court, HELD:.
Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
[199 C D] 2.
After the amendment of 1976, a consent decree, is executable in terms thereof, even if it comprehends matters failing outside the subject matter of the suit, but concern ing the parties.
[201 E] 3.
The object of the amendment of Order XXIII, Rule 3, C.P.C. was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive construction of the amended provisions.
The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
[202 D E] 4.
There is no reason to assume that the legislature intended to curtail the implied authority of counsel, en gaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the 'civil law 'of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant.
[202 E H] 5.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents.
Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise.
[205 F H] 6.
A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
[207 B] 7.
In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed.
The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
[206 F G] 8.
The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuc cessful challenge by reason of delay, estoppel or res judi cata.
[207 E F] Halsbury 'section Laws of England, 4th Ed. Vol.3, Paras 1181 & 1183; Francis Bennion 's Statutory Interpretation, Butter worths, 1984, para 133; Crawford 's Statutory., Construction, Para 254; Rene David, English Law and French Law Tagore Law Lectures, 1980; Spencer Bower to Turner in Res 190 Judicata, Second Edition, Page 37; The Common Law in India 1960 The Hamlyn Lectures, Twelfth Series.
pp 1 4, referred to.
Patience Swinfen vs Lord Chelmsford, [1860]5 H & N 890 at 912; S.C.(Ex.) 382; Mathews vs Munster, [1887] 20 Q.B. 141 at 144; Rondel vs Worsley, [1965] 1 Q.B. 443,502; (Babu) Sheonandan Prasad Singh &Ors.
vs Hakim Abdul Fateh Mohammed Reza & Anr., AIR 1935 P.C. 119,121; Sourendera Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 P.C. 158; Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79; Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors., [1975] Supp.
SCR 336; Monoharbahal Colliery, Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632; National Assistance Board vs Wilkin son, ; Sailendra Narayan Bhania Deo vs The State of Orissa, ; ; Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; , Shankor Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Sontakke & Ors. ; , referred to.
Ram Juwan vs Devendra Nath Gupta, AIR 1960 M P. 280; Vishnu Sitaram Auchat vs Ramchandra Govind Joshi, AIR 1932 Bombay 466; Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456; Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr, ; Chengan Soun, Nayakam vs A.N. Menon, AIR 1968 Kerala 213; Jiwibai vs Ramkumar Shrini was Murarka Agarwala, AIR 1947 Nagpur 17; Govindamreal vs Marimuthu Maistry & Ors., AIR 1959 Mad 7; Laxmidas Ranchhod das & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Bombay 54; Mohan Bat vs Jai Kishan, AIR ; Smt.
Mohan Bat vs Smt.
Jai kishan & Ors., AIR , Nadirsha Hirji Bana & Ors.
v Niranjanlkumar alias Nireshku mar Dharamchand Shah & Ors., , approved.
Kesarla Raghuram vs Dr. Narsipalle Vasundara, A.I.R. 1983 A .P. disapproved.


Input:
Civil Appeal No. 901 of 1968.
Appeal by special leave from the judgment and order dated the 5 10 1966 of the High Court of Judicature at Allahabad in Special Appeal No. 97 of 1965.
J. P. Goyal and A. G. Ratnaparkhi for the Appellant.
G. N. Dikshit and M. V. Goswami for Respondents.
J. This is an appeal by special leave against the judgment of a Division Bench of the High Court of Allahabad dated October 5, 1966, and raises a question of law regarding the applicability of sections 172 and 174 of the U.P. Zamindari Abolition and Land Re forms Act, 1950 (Act No. 1 of 1951).
,, It appears that the case had a checkered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court.
In order to appreciate the point of law involved in this appeal, it may be necessary to give a resume of be facts which culminated is the judgment of the High Court under appeal.
The dispute refers to lands comprised in Khata Nos.
1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.).
It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin.
Ramcharan appears to have died issueless but Ramadhin died leaving a widow Smt.
Menda and a daughter from her Smt.
Phoola who was respondent No. 1.
The other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt.
Phoola.
During the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan Lallu.
The District of Rae Bareli fell in what was previously known as the Oudh Area of the United(1)Provinces.
The dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt.
Menda.
At the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act, 1886 hereinafter referred to J as 'the Rent Act of 1886 '.
Under the provisions of the Rent Act of 1886 Smt.
Menda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same.
The terms and conditions of the tenancy at the time of the death of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to the oudh Area where the lands in dispute were situate.
Under s.48 of the Rent Act of 1886 it is obvious that on It the death of a tenant his widow was to continue in occupation of the lands for the unexpired portion of the period for which the deceased tenant might have held the holding.
Accordingly Smt.
Menda continued to occupy the lands after the death of her husband in 1916.
Meanwhile five years later the Rent Act of 1886 was amended by U.P. Act 4 of 1921 under which the status of a statutory tenant was con feared on a person who was in possession of the lands on the date when the amendment came into force.
The amendment introduced a substantial change in s.48 of the Rent Act of 1886 and added clause '(1)(18) to s.3 which runs thus: "(18) "Statutory tenant" means a tenant to whom section 36 or section 37 applies.
Explanation.
A person who succeeds as an heir of a(1)statutory tenant under section 48 shall not be deemed to be 265 a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under section 48: "Provided that when a holding is held by two or more co tenants no person who succeeds as an heir of any such co tenant under section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co tenant is entitled to retain occupation of the holding under section 48." By virtue of the Explanation extracted above, a tenant to whom sections 36 and 37 applied would be deemed to be a statutory tenant.
Section 36 of the Rent Act of 1886 runs thus: "Every tenant, not being a tenant with a right of occupancy or a sub tenant, shall be entitled to retain possession of the holding occupied by him at the commencement of the Oudh Rent (Amendment) Act, 1921, at the rent then payable by him, for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding, or where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding." As Smt.
Menda was in possession of the holding at the date when the amendment came into force, she would be clearly governed by section 36 and not section 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the coming into force of the amendment.
Under section 36 the widow was entitled to retain possession of the holding acquired by her for a period of ten years from the date on which she was admitted to the occupation of the holding.
Thus the combined effect of section 3(18) and section 36 of the Rent Act of 1886 would be to clothe Smt.
Menda with the status and the rights of a statutory tenant.
Section 48 made the status of a statutory tenant heritable and provided as follows: "(1) When statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent pay able by the deceased for a period of five years from the date of the tenant 's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy.
Provided that a person who succeeds as an heir of a deceased tenant to whom clause (e) of sub section (1) of section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for 266 the unexpired portion of the statutory period of the deceased tenant.
(2) Subject to any rights which he may have under section 22 as a representative of the deceased, a collateral relative who did not at the date of the death of the, deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section.
" In the instant case as Smt.
Menda had succeeded as an heir to her husband before the amendment of section 48 her case will be governed by the provisions of section 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof.
It appears that soon after the death of Ramadhin the Court of Wards claimed that the tenancy had escheated to the State because Ramadhin had left no heirs and that Ramadhin was only a tenant at will.
Menda appears to have resisted the claim of the Court of Wards.
which resulted in proceedings before the Revenue Courts which ultimately found that Smt.
Menda had acquired the independent rights of a statutory tenant and was, therefore, not liable to be ejected at the instance of the Court of Wards.
This order was passed by the Assistant Collector on June 4, 1926 and thereafter Smt.
Menda continued in possession of the holding as a statutory tenant under the amended Rent Act of 1921.
We might mention here that previous to the passing of the U.P. Tenancy Act, 1939 the areas of Oudh and Agra in the United Provinces were governed by two separate Acts so far as the tenancies were concerned.
The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act.
`The U.P. Tenancy Act 17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the legislature passed one Act which would govern all the tenancies in the entire Province.
The U.P. Tenancy Act 17 of 1939 was passed on December 16, 1939 and by section 2 there of the Agra Tenancy Act, 1926 and the Oudh Rent Act, 1886 were repealed.
Section 29 of the Tenancy Act conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act.
Thus Smt.
Menda who continued to be in possession as a statutory tenant acquire the status of a hereditary tenant, under section 29(a) of the Tenancy Act which runs thus: "29.
Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of section 4 shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely: (a) every person who is, at the commencement of this Act, a tenant of land otherwise than as a permanent tenure holder, a fixed rate tenant, a tenant holding on special terms in Oudh, an ex Proprietary tenant, an occupancy tenant, 267 except as otherwise provided in this Act as a sub tenant or a tenant of sir :" The Tenancy Act having conferred heritable rights on the tenants to which section 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant.
Sections 36 and 37 of the Tenancy Act provided two different modes of devolution in the case of the death of a female tenant.
Section 36 runs thus: "36 (1) When a female tenant, other than a tenant mentioned in section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step mother, as a father 's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, not withstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father 's father under the provisions of that section.
x x x x " Section 37 of the Tenancy Act runs thus: "when a female tenant, other than a tenant mentioned in section 34 or section 36 dies, her interest in the holding shall devolve in accordance with the order of succession given below: (a) male lineal descendants in the male line of descent: Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive; (b) husband; (c) unmarried daughter, (d) daughter 's son; (e) brother (f) brother 's son.
" It will be seen that under section 36 of the Tenancy Act the heirs of the husband precedence over the daughter or the unmarried daughter, whereas in the case of a female tenant falling under section 37 of the Tenancy Act the unmarried daughter gets precedence over the brother the or brother 's son.
In other words, the policy of the law was that where a female tenant died having inherited an interest in the property from her husband then the male heirs of the husband should get preference over the female heirs.
Where, however, the female tenant had died having an independent and self acquired interest in the holding, her property was to pass in a different manner.
We are not concerned in this appeal with either section 36 or section 37 of the Tenancy Act, because Smt.
Menda had died some time in September 1952 L522SCI/76 268 when the U.P. Tenancy Act, 1939 had been replaced by the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) hereinafter to be referred to as 'the Abolition Act. ' In short, therefore, Smt.
Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921, a hereditary tenant under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on July 1, 1952.
The relevant portion of section 18 of the Abolition Act may be extracted thus: 18.
(1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands (a) in possession of or deemed to be held by an intermediary as sir, khudkasht, or an intermediary 's grove (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (c) held by a fixed rate tenant or a rent free grantee as such, or (d) held as such by (1) an occupancy tenant, ' (ii) a hereditary tenant, (iii)a tenant on patta dawami or istamrari referred to in section 17 possessing the right to transfer the holding by sale.
(e) held by a grove holder, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary lessee, tenant, grantee or grove holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof." As Smt.
Menda had already become a hereditary tenant under the Tenancy Act she automatically acquired the status of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by s.18(1) of the Abolition Act, the lands, having been vested in the State Government, were deemed to have been permanently settled with the bhumidhar, namely, Smt.
Menda in this case.
It is the admitted case of the parties that Smt.
Menda died some time in September 1952, i.e. Only a few months after coming into force of the Abolition Act.
The controversy between the parties now centers round the question as to who would succeed to the tenancy left by Smt.
Menda.
In other words, the matter to be decided is whether section 172 or section 174 of the Abolition Act would apply to the present case.
It is not disputed that Smt.
Menda died leaving a daughter Smt.
Phoola and her husband 's brother 's son Jit.
These were the two contending heirs for the property left by Smt.
Menda.
269 Sections 172 and 174 of the Abolition Act, insofar as they are A relevant, may be extracted as follows: "172.
(1) When a bhumidhar sirdar or asami, who has after the date of vesting, inherited an interest in any holding "(a) as a widow, widow of a male lineal descendent, in the male line of descent, mother or fathers mother dies, marries, abandons or surrenders of , such holding or part thereof; or (b) x x x the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) or the last male bhumidhar, sirdar or asami.
X X "174.
When a bhumidhar, sirdar or asami (other than a bhumidhar, sirdar or asami mentioned in Section 171 or 172) who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given below: (a) son, son 's son, son 's son, son 's son 's son predeceased son 's widow and predeceased son 's predeceased son 's widow in equal shares per stripes: Provided firstly that the nearer shall exclude the remoter in the same branch: Provided secondly that a widow, who has remarried, shall be excluded; (d) daughter; x x x (g) brother 's son; x x x x It is, therefore, clear that the mode of succession to the property of Smt.
Menda would depend on the determination of the question whether Smt.
Menda had inherited an interest in any holding or had an independent interest in the holding.
This matter appears to have been canvassed before the Revenue Courts which upheld the plea of Smt.
Phoola.
To begin with on the death of Smt.
Phoola, Jit was successful in getting his name mutated in respect of the Khattas in dispute as being the nearest heir to Smt.
Menda.
The mutation was made by the Tahsilder Maharajgunj on July 30, 1954.
This mutation appears to have been challenged by Smt.
Phoola who claimed to be the daughter of Smt.
Menda and therefore a preferential heir to the property as compared to Jit.
In 1957 Smt Phoola filed a suit under section 209 of the Abolition Act for the ejectment of Jit from the disputed lands, on the ground that she was the sole legal heir of the 3 L522SCI/76 270 property left by Smt.
Menda.
In the meanwhile in 1961 a notification under section 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consolidation operations.
Accordingly Smt.
Phoola filed an application during the consolidation operations before the Consolidation officer, Bachhrawan, for correction of the records under section 10(1) of " the U.P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt.
Phoola 's name may be mutated therein.
The Consolidation officer accepted the plea of Smt.
Phoola and he accordingly struck off the name of it from the Khattas and directed that Smt.
Phoola being the legal heir of Smt.
Menda her name be mutated in respect of the Khattas.
Thereafter Jit filed an appeal against the order of the Consolidation officer before the Settlement officer (Consolidations), Tahsil Maharajgunj, District Rae Bareli.
The Settlement officer by his order dated December 26, 1961 dismissed the appeal and upheld the order of the Consolidation officer.
Thereafter Jit filed a second appeal be fore the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U.P. Consolidation of Holdings Act as it was in force then.
The District Deputy Director of Consolidation upheld the plea of Smt.
Phoola and held that she was entitled , to inherit the property of Smt.
Menda being her legal heir in preference to Jit who was merely her husband 's brother 's son and relied upon section 171 of the Abolition Act, and accordingly dismissed the appeal.
Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being concluded by a finding of fact.
Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965.
Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Sing Judge and dismissed the writ petition filed by Jit upholding the plea of Smt.
Phoola.
There after Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court.
In support of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that Smt.
Phoola was entitled to succeed to the property left by Smt.
Menda.
The learned counsel submitted that the present case squarely fell within the ambit of section 172 of the Abolition Act since Smt.
Menda had originally inherited the property from her husband Ramadhin and, therefore, according to the order of succession provided in section 171 of the Abolition Act which applied to section 172, Jit who was the son of the brother of Ramadhin would succeed in preference to the daughter of Smt.
Menda.
The respondents despite service did not appear and we requested Mr. G. N. Dikshit to assist the Court amicus curiae and we are grateful to him for the valuable assistance he rendered to us in deciding the complicated issues of law involved in this appeal.
Mr. Dikshit submitted that at the time when Ramadhin died the tenancy was not heritable and therefore the , question of Smt.
Menda having inherited the estate of her husband did 271 not arise and the tenancy held by Smt.
Menda must therefore be regarded as having been acquired by her in her own right as her self acquired property and, therefore, the Division Bench of the High Court and the Revenue Courts were right in upholding the plea of Smt.
Phoola.
We have gone through the entire record as also the judgment of the Single Judge and the Division Bench and we think that the Division Bench of the High Court has taken an erroneous view of the law in the present case.
The Division Bench found that although it was established that Smt.
Menda had inherited the property from her husband Ramadhin yet the finding of the Revenue Courts was that she had acquired the status of a statutory tenant independently and since there was no error of law in this finding of the Revenue Courts there was no reason for the Single Judge to set aside the order of the Joint Director of Consolidation and allow the petition.
It was argued before the High Court that the matter was concluded by a Division Bench decision of the Allahabad High Court in Mst.
Jaini & ors.
vs Ram Prasad(1) and the High Court appears to have brushed aside this decision on a strange process of reasoning which does not appeal to us at all.
the High Court observed as follows: "Mr. Misra has strenuously contended that Jaini vs Ram Prasad (1)supra) is clear authority for the proposition that even in the case of a statutory tenant succession would devolve under section 36 which, according to Mr. Misra is a counter part of section 172 read with section 171 of the U.P. Zamindari Abolition Act.
Jaini vs Ram Prasad (supra) is clearly distinguishable because that case came up in appeal before this Court and not in the form of a writ or an appeal against the decision of a learned single Judge in a writ petition.
" It is obvious that whether a Division Bench decision is given in an appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench, and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same because it was hearing the proceeding in a writ petition.
The rule of judicial precedent is a very salutary one and is aimed at achieving finality and homogeneity of judgments.
In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same Court it ought to have referred the matter to a larger Bench but it was not open to it to ignore completely the previous decision on illogical and unintelligible grounds as given by the High Court.
We are further of the opinion that the Division Bench having found as a fact that Smt.
Menda had inherited the property initially from her husband erred in law in not applying the provisions of section 172 read with section 171 of the Abolition Act as a result of which Jit being her husband 's brother 's son was entitled to succeed to the estate left by Smt.
Menda in preference to Smt.
Phoola the daughter.
We now proceed to give reasons for this conclusion.
(1) A.I.R. 1952 All. 852.
272 Section 172 of the Abolition Act as extracted above provides that when a bhumidhar who has after the date of vesting inherited an interest in any holding dies the holding would devolve upon the heirs in accordance with the order of succession mentioned in section 171 of the Abolition Act.
It is manifest therefore that in order to determine the applicability of section 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from " which the bhumidhar has derived interest in the holding.
It may be pertinent to note here that the statute uses the words "the holding or the part shall devolve" to denote that if it is found that a widow has inherited an interest in the holding from her husband, then it is the holding that devolves and not interest of the widow which ceased after her death.
Thus the statute seeks to make a clear cut distinction between a widow who has inherited an interest from her husband which is dealt with by section 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by section 172 of the Abolition Act.
The High Court appears to have overlooked the fact that merely because Smt.
Menda having initially inherited possession or occupation of the holding from her husband acquired other types of interests merely by operation of law, that could not destroy the origin or the source of her title which was inheritance from her husband.
Nor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an acquisition u. of a self acquired interest by the widow.
It was, however, argued by Mr. Dikshit that under the Rent Act of 1886 before its amendment by Act 4 of 1921 the estate which was held by Ramadhin was not heritable at all and, therefore, Smt.
Menda could not have inherited any interest in the tenancy on her husband 's death.
In this connection the learned counsel sought to draw a distinction between the provisions of the Agra Tenancy Act which had made the tenancies heritable and the provisions of the Oudh lenience Act which did not make the tenancies heritable.
Although the argument appears to be extremely attractive, on closer scrutiny it is not tenable.
The words used in section 172 of the Abolition Act are "inherited an interest".
The statute has not defined the word "interest" and therefore it must be deemed to be of the widest possible amplitude.
It will include not only an absolute interest but also a limited interest, a precarious interest and an inchoate interest or the like.
Section 48 of the Rent Act of 1886 before its amendment by Act 4 of 1921 stood as follows: "48.
(1) The heir of a tenant who dies during the currency of the tenancy of a holding shall be entitled to retain to occupation of the holding at the rent payable by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by himself or his predecessor in interest, but shall not be entitled to a renewal of the tenancy.
x x x The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of 273 the lands in dispute is given only to the heirs of the deceased tenant A which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act.
In the instant case since Smt.
Menda continued to retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was not to then she could not have been entitled to retain occupation.
The word 'entitled" clearly signifies that the occupant must have some right, however precarious or limited it may be.
In these circumstances, therefore, there can be no doubt that Smt.
Menda 's occupation of the tenancy on the death of Ramadhin was by way of inheritance only.
There was no other method by which she could have a right or claim to retain occupation of the holding.
It is true that the interest of Smt.
Menda was a very limited one and she could have been ejected by the landlord under certain circumstances.
But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant (1) the right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvements made.
In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt.
Menda on her husband 's death was purely in her individual or independent capacity or that the possession of the lands amounted to her self acquired property.
Section 174 of the Abolition Act would naturally apply only to such cases where` a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her self acquired property, her stridden or the like.
That is why section 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding.
Thus the language used in sections 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply.
The Revenue Courts have also held as a fact that initially Smt.
Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt.
Menda after she had already invented the property as amounting to her self acquired property.
It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in section 172 of the Abolition Act.
Section 172 A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof.
We are, however, not at all concerned with 8.
172 A of the Abolition Act, because Smt.
274 Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by section 17 or section 174 of the Abolition Act.
In the Division Bench decision in Mst.
Jaini 's case (supra) the Allahabad High Court had taken the same view.
Malik, C.J., speaking for the Court observed thus: "Section 36 does not require that the tenancy as such should have been inherited by the widow.
All that it provides is that the widow should have inherited an interest in the holding.
The mere fact that she had to remain in possession for a further period of eight years before she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a widow.
We fail to see how it could be said, in view of the language of section 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhau.
Section 36 was thus clearly applicable." The Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sital vs Suraj Din(1) where exactly the same view was taken as the one we have taken in the instant case.
The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus: "We can assume that she acquired on the passing of the new Act (Act 4 of 1921) a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title.
It is only when a female tenant acquires tenancy rights which do not have their origin in inheritance that the case could be taken out of the` amble of section 36 to be governed by section 37.
" It would be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen and if the tenancy rights had their origin in inheritance then sections 36 & 37 would rot apply.
For these reasons, therefore, we are satisfied that the origin of the title of Smt.
Menda lay in inheritance of the estate of her husband however limited or precarious it may have been.
This being the position, the succession to the estate of Smt.
Menda would have to be governed by the provisions of section 172 of the Abolition Act which has applied the provisions of section 171 regarding the order of succession.
In the order of succession given in section 171 of the Abolition Act brother 's son is a preferential heir.
It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brother 's son.
But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance.
It is also not disputed that Smt.
Phoola was (1) Second Appeal No.421 of 1943 decided on 20 12 48.
275 a married daughter on the death of Smt.
Menda.
In these circumstances, therefore, the holding held by Smt.
Menda would devolve on Ramadhin 's brother 's son, namely, Jit and thereafter on his heir who is now continuing the present proceedings.
Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt.
Phoola.
the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by section 174 of the Abolition Act as the interest left by Smt.
Menda was her self acquired property.
The result is that the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored.
In the peculiar circumstances of this case, and particularly having regard to the fact that the respondents have not appeared to contest the appeal before this Court, we make no order as to costs in this Court.
P.B.R. Appeal allowed.

Output:
Under section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, when a bhumidar who has, after the date of vesting, inherited an interest in any holding, dies, the holding or the part thereof shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 171).
Section 174 provides that when a bhumidar who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given in the section.
The appellant was the grandson (son 's son) of one brother while respondent No. I was the only daughter of another brother.
On the death of the(1)respondent 's father, her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886.
U.P. Act 4 of 1921 which replaced the 1886 Act, conferred the status of a statutory tenant upon a person in possession of lands on the date of the amendment.
Section 29 of the U.P. Tenancy Act, 1939, which was a consolidating Act, conferred the status of a hereditary tenant on any person who was a tenant .
of the land at the commencement of the Act and so the mother acquired the status of a hereditary tenant.
The 1939 Act.
was replaced by the U.P. Zamindari Abolition & Land Reforms Act.
1950 under which she became a bhumidar.
The mother died in 1952.
On the death of the respondent 's mother the appellant got his name mutated in the revenue records as the nearest heir of the mother.
The respondent Sled a suit under section 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property.
She also field an application before the Consolidation officer under the U.P. Consolidation of Holdings Act for mutation of her name in a place of the appellant 's, which was accepted.
On appeal to this Court it was contended that it was the appellant 's father who would succeed to the property in preference to the respondent and it was contended for the respondent that when the respondent 's father died, the tenancy was heritable and so the tenancy acquired by her mother was in her own right as self acquired property.
Allowing the appeal, ^ HELD: (1) Section 172A which was introduced in 1954 has no application to this case because the mother died two Years before the amendment came into force and the question of succession to her estate would be governed by section 172 or section 174 of the Abolition Act.
[274 A] (2) The statute seeks to make a clear cut distinction between a widow who has inherited an interest from her husband dealt with in section 172 and widow who had acquired an independent interest in the holding covered by section 174.
[272 C] Mst.
Jaini & Ors.
vs Ram Prasad, A.I.R. 1952 All. 852, approved.
(3) (a) Section 172 uses the word 'holding or the Dart shall devolve ' to denote that if it was found that a widow had inherited an interest in the holding from her husband then it was the holding that devolved and not interest of the widow, which ceased after her death.
The High Court had overlooked the fact that merely because the mother having initially inherited possession or 263 occupation of the holding from her husband acquired other types of interest A by operation of law that could not destroy the origin or the source of her title which was inheritance from her husband.
Nor did the conferment of the status of a statutory tenant under the various laws passed by the legislature amount to an acquisition of a self acquired interest by the widow.
[272B, D) (b) The words "inherited an interest" occurring in section 172 are not defined in the statute and, therefore, they must be deemed to be of the widest possible amplitude.
[272F] (4) Section 174 applies only to such cases where the widow did not inherit an interest from her husband but had an independent interest in the holding which she possessed as her self acquired property Under section 174 it is the interest in any holding which devolves and not the holding.
The language used in Ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction between the two contingencies in which the two sections are to apply.
[273E F] (5) The High Court having found as a fact that the mother had inherited the property initially from her husband erred in law in not applying the provision of section 172 read with section 171 of the Abolition Act as a result of which her husband 's brother 's son was entitled to succeed to the estate left by her in preference to her daughter (respondent).
[271H] (6) The origin of the title of the mother lay in inheritance of the estate of her husband however limited or precarious it might have been.
The succession to the estate of the mother would have to be governed by the provisions of section 172 of the Abolition Act.
In the order of succession given in section 171 brother 's son was a preferential heir.
Before the amendment of the Abolition Act in 1954, married daughter was completely excluded from inheritance.
[274G H] In the instant case the respondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellants father and thereafter, on the appellant as heir to his father.
(7) The expressions 'heir of a tenant ' and 'shall be entitled to retain occupation ' occurring in section 48 of the Rent Act 1886 before its amendment in 1921 clearly postulate that the right to retain the occupation of the lands in dispute was given to the heirs of the deceased tenant, which clearly indicated that the person who retained occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act.
[273A] In the instant case on the death of her husband occupation of the.
tenancy by the mother was by no way other than as heir of her husband.
It cannot be said that the occupation of the lands by the mother on her husband 's death was purely in her individual or independent capacity or that her possession of the lands amounted to her self acquired property.
[273D E] (8) Whether a decision is given in appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same on the ground that it was hearing the proceeding in a Writ petition.
The rule of judicial precedent is a salutary one and is aimed at achieving finality of judgments.
In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same court it ought to have referred the matter to a large bench.
[271F G]