There is no doubt that paragraph 7 of Exhibit A is ambiguous and it is desirable that evidence should be taken as to what the parties intended thereby.
We must call for findings on the following issues:—
(1) What were “the other terms of the Razinama” referred to in paragraph 7 of Exhibit A?
(2) Was the settlement of the matters dealt with in Exhibit A conditional on a settlement being subsequently arrived at on the “other terms” referred to in the above first issue?
Each side may adduce evidence. The findings will be submitted within six weeks and seven days will be allowed for filing objections.
In compliance with the order contained in the above judgment, the Subordinate Judge of Negapatam submitted the following
FINDINGS
Viz., (1) that by the words “the other terms of the Razinamah” in Exhibit A, paragraph 7, it was meant only to introduce a recital as regards the will relied on by the plaintiff and the adoption relied on by the 1st defendant with the advice of the pleaders and to make the language of Exhibit A more formal so as to make it fit to be filed directly into Court; as for instance, by introducing the name of the Court, the number of the suit, the description of the parties etc., and that those words were not intended to cover the question whether any other terms, by way of reliefs, to be given to the plaintiff or the 1st defendant should be introduced after consultation of pleaders; and (2) that the settlement of matters dealt with in Exhibit A was not conditional on a settlement being subsequently arrived at on the ‘other terms ‘referred to in issue (1).
[This appeal came on for final hearing after the return of the finding of the lower Court on the issues referred by this Court for trial and the Court delivered the following]
JUDGMENT
The only point for decision in this case is whether Original Suit No. 49 of 16 has been validly compromised between the plaintiff and the 1st defendant by a lawful agreement under O. 23, R. 3 of the Code of Civil Procedure as alleged by the 1st defendant. Plaintiff's case is that though there was a mediation between the parties and an agreement was arrived at, on some of the points in dispute, there were still other points outstanding to be settled and therefore there was no completed contract. The Subordinate Judge decided in favour of the 1st defendant that Exhibit A signed by the parties evidenced a completed agreement and gave a decree in its terms. Hence the appeal to us by the plaintiff.
The plaintiff admits Exhibit A but contends that that it is only a memorandum of the points provisionally agreed to, by her and that the matter remained in a state of negotiation still and that it was only after certain further points were settled after consultation with vakils and a formal razinama petition was drawn up and signed by her embodying all the terms, that the contract would become complete. She declined to sign Exhibit I which was the formal petition that was so drawn up and she contends that there was therefore no agreement binding on her and that the attempted compromise fell through.
In Exhibit A there is a statement in Cl. 7 which seemed to lend some support to her case. It says “that in respect of all the other terms of the razinama vakils shall be consulted and another razinama prepared and filed in Court regarding” the reliefs to be granted to each. Now, as the expression, “the other terms of the razinama” was ambiguous and it was not clear whether it referred merely to the wording of the razinama as defendant contended, or to other terms of dispute on the merits between the parties and as the Subordinate Judge had disposed of the matter in the first instance on the affidavits of the parties and as plaintiff's affidavit did not state what those other terms were according to her, we considered it proper that evidence should be taken of the mediators and others who took part in bringing about the alleged settlement under Exhibit A to explain the clause and we therefore remanded the case for the purpose and directed the Subordinate Judge to take evidence and return findings as to what the “other terms” were and whether the settlement under Exhibit. A was conditional on the settlement to be arrived at on those other terms. The Subordinate Judge has taken the evidence and has returned findings on both points in favour of the defendants. He finds that “the other terms” did not refer to any points of dispute on the merits between the parties but only to the introduction of a recital as regards the truth of the will relied on by the plaintiff and of the adoption relied on by the first defendant with the advice of pleaders in the razinama and to make the language of Exhibit A more formal so as to make it fit to be filed in Court and on the 2nd issue he finds that it was not intended that the settlement under Exhibit A was to be conditional on any other terms being settled later.
Mr. T. Rangachariar for the appellant contended that the findings on these issues were wrong. On the evidence on record we are inclined to agree with the Subordinate Judge that all matters in dispute between the parties were really settled before Exhibit A was drawn up and that the “other terms” in Cl. 7 really refer to what the Subordinate Judge finds. The plaintiff wanted a recital of the truth of her will and the defendant of the truth of his adoption in the final razinama petition; but in view of the terms agreed to in Exhibit A these recitals were of no importance and apparently were not a matter of dispute between the parties. The parties having disputed these points in the suit apparently wanted to consult the vakils to find out, if it was proper to add such admissions in the razi petition and if so how they should be worded. This is what the plaintiff's witnesses say and we think it is most likely. Even the 2nd witness for the plaintiff admits this was what was meant by Cl. 7. There is no real foundation for the suggestion that the introduction of these recitals was a matter of dispute between the parties which was arranged to be settled between them after consulting their respective vakils. The statement of plaintiff's 1st witness in cross-examination to which our attention was drawn that “the plaintiff said that will must be recited as true and defendant that adoption was true and we mediators said that on those points, the pleaders must be consulted and decision arrived at” must be read with the rest of his evidence and the evidence of the other mediators when it will be clear that what he meant was that the vakils were to decide how the recitals could be properly made and not that the parties should decide whether the recitals should be made at all. We are unable to credit the plaintiff when she enumerates a number of items of dispute as referred to in Cl. 7, for she is not corroborated in it by her own 2nd witness. We accept the finding of the Subordinate Judge as to the meaning of Cl. 7.
We also accept the Subordinate Judge's finding that the settlement under Exhibit A was not in any way dependent on the settlement of any other terms afterwards. It is fully supported by the evidence on record and was hardly attacked by the appellant's pleader. All the mediators whose evidence we have accepted support this view.
In these circumstances can it be said that Exhibit A does not evidence a completed contract? We do not think so. Mr. Rangachariar cited several English cases as in his favour viz. Winn v. Bull Appleby v. Johnson Stanley v. Dowdeswell and Von Hatzfeldt-wildinburg v. Alexander, while on the other side the cases in North v. Percival and Gray v. Smith were cited. It is not necessary to refer to them in detail as the law on the point as to when a contract should be viewed as complete and when not is fairly clear. The question has to be decided in each case on its own facts. If a consensus ad idem had been reached between the parties on all the proposed or disputed terms, there is a contract; but as Jessel M.R puts it in the case in Winn v. Bull, “if two persons agree in writing that up to a certain point the terms shall be the terms of the contract but that the minor terms shall be submitted to a solicitor and shall be as are approved of by him” or if they are otherwise left unsettled there is no contract; this is so even if they are minor terms. But if all the terms are agreed to, any stipulation to embody those terms in a formal document will not affect the contract except when there is a further stipulation express or implied that the contract shall not be treated as complete till the formal document is drawn up and signed. The English cases cited illustrate these principles.
In the present case we have found that though the parties desired to have a formal razinama petition prepared and to have the recitals above referred to included in it, this no way affected the agreement come to in” Exhibit A. These were formal matters left to the vakils to arrange as they thought fit without affecting the contract between the parties. We think the objection raised by the appellant that the contract under Exhibit A was incomplete and unenforceable fails. It may be that she is entitled to have the recitals put in the razi petition but she never asked for it.
The appeal against order fails and is dismissed with costs.
S. S.Appeal dismissed.