Maclean, C.J:— This appeal raises an interesting but, not, I think, a very difficult point. The facts necessary to be stated for its due appreciation lie within a very narrow compass One Nabokristo Mukerjee, the father of the present Plaintiff, died on the 27th Bhadro 1297 leaving him surviving four sons, four daughters and his widow, the mother of all the eight children. A short time after his death, the four sons partitioned the property, and they came to an arrangement with their mother, in lieu of her share under a partition, that she should be entitled to occupy certain rooms and receive Rs. 100 a month. After wards one of the sons, Raj Narain Mukerjee challenged this partition and instituted a suit to have it set aside, and he made parties to that suit, his three other brothers and his mother. In that suit, the parties effected a compromise. The present Plaintiff, one of the daughters, was not a party to that suit or to the compromise, which is dated the 26th of May 1893. The compromise evidently was effected after the trial of the suit had begun, because it recites “that after examination of witnesses on behalf of the Plaintiff had commenced, this suit has been postponed for settlement by way of compromise.” The clauses in that document to which I need refer are the 7th, the 9th and the 13th.
The 7th clause is in these terms:— “We, the four uterine brothers, shall pay Rs. 5,000 to each of our sisters,” naming them, “within five years from this date. If we do not pay within five years we shall pay interest on the said sum at the rate of 12 annas per cent, per month. Out of this, I, Surja Narain Mukerjee, shall pay to my third sister, Khirod Kumari Debi, the sum of Rs. 5,000 which is payable to her, and I, Raj Narain Mukerjee, shall pay to Srimati Pool Kumari Debi the sum of Rs. 5,000 which is payable to her; and we, both Protap Narain and Rain Narain Mukerjee, shall pay the sum of Rs. 10,000 at the rate of Rs. 5,000 each to Srimati Sarat Kumari Debi and Srimati Kusum Kumari Debi, (i.e), each of us shall pay at the rate of Rs. 5,000 to our mother Srimati Nistarini Debi according to the aforesaid stipulations. God forbid, if our mother dies within the said five years, then we shall pay the said sum to the said Sarat Kumari Debi and Kusum Kumari Debi. Khirod Kumari and Fool Kumari shall have no right to the said sum.”
Clause 9 is in these terms:— “That the late Nobokristo Mukerjee, the father of us, Protap Narain, Ram Narain, Surya Narain and Raj Narain Mukerjee, and the husband of me, Srimati Nistarini Debi, died without making any Will. Though I, Raj Narain Mukerjee, had previously done some acts on the belief that my father had made a Will, but now I have learnt on enquiry that such belief of mine is groundless, and I, Srimati Nistarini Debi have also learnt on enquiry that my deceased husband Nobokristo Mukerjee had not made any Will, so that in future we shall not be able to make any claim or demand on the ground of the existence of a Will made by him.”
Clause 13 is in these terms:—“That I, Nistarini Debi, on agreeing to take Rs. 100 as monthly allowance, at the time of the partition between my sons, of the estate left by my husband, relinquished the share receivable by me under the Hindu law, and signed the said partition deed. But, as was then ill in body, I declared that I had not perfectly understood the same. But 1 now having relinquished the share receivable by me after perfectly understanding the above matter, and the disputes among my sons having been settled and my sons having agreed to pay at the rate of Rs. 5,000 to my daughters, as stated in paragraph 7. I am fully a consenting party to the said partition deed and to this ruffanama, and I fully approve all the terms of the same. In future I shall not be able to make any claim or demand on the ground of my having any share in the properties left by my husband.”
The mother has died within the five years mentioned in clause 7, and the present Plaintiff Sarat Kumari Debi sues her brothers, Protap Narain and Ram Narain far the Rs. 5,000, which she says they agreed to pay her under the solenamah. Her case is that under the terms of the solenamah or compromise, the mother having died within the prescribed period, the Rs. 5,000 is now payable to her. The Defendants contend that she is not entitled to maintain this suit, not being a party to the compromise, and, in support of that proposition, certain cases decided in the Courts in England have been referred to. For instance the cases of In Re Botherham Alum and Chemical Company(1) and Child and Co. v. Thurley(2). It is unnecessary, however, to deal with these cases, for we have to decide this question according to Indian and not according to English law, and the question admittedly turns upon what is the true meaning of sub-section (c) of sec. 23 of the Specific Relief Act. That section runs as follows:— “Except as otherwise provided by this chapter,”—and it is not suggested that there is any other provision which touches this point,— “the specific performance of a contract may be obtained (c) where the contract is a settlement on marriage,” which is not the case here, “or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder.” The Plaintiff says that this was a compromise of doubtful rights between members of the same family, and that she is a person beneficially entitled thereunder. We have, therefore, to consider, first, whether the compromise in this case is one of doubtful rights within the meaning of the sub-section, and, secondly, whether the Plaintiff is a person beneficially entitled thereunder, so as to entitle her to sue under the statute. There is no such statutory right known to the English law, and consequently English authorities are not of much value in this connection.
There cannot be any reasonable doubt that this was a compromise of doubtful rights. In the first place one of the sons was challenging the validity of the previous partition, and the mother was suggesting, at any rate the existence of a Will by her late husband, and claiming that she did not fully understand the arrangement as to her only receiving Rs. 100 per month and that she was not bound by that arrangement, whilst apparently the other brothers were contesting these claims. There was therefore a contest between the parties. The issue of that contest was doubtful, the rights of the parties under that contest was undetermined, and so far as one can judge doubtful. Under such circumstances it is impossible to say that this compromise was not one of doubtful rights.
Then the question arises whether the Plaintiff is a person beneficially interested thereunder. That, again, is reasonably clear. The words “beneficially entitled thereunder” are wide and comprehensive: the legislature does not confine the right to sue herby merely to the parties to the compromise. We have then to discover whether the present Plaintiff is a person beneficially entitled under the compromise. She clearly was; she was entitled to Rs. 5,000 on the happening of a certain event which has happened. The mother stipulated, as one of the terms of her joining in the compromise, that the Plaintiff should have this sum of Rs. 5,000, and that being so, she is clearly a person beneficially entitled under the compromise. This disposes of the case. It has, however, been suggested that Kusum Kumari Debi or her representatives are necessary parties to the suit: I do not think this is so. The Plaintiff is not asking for any relief as against her. It is clear on the construction of clause 7 read with clause 13 of the compromise, that each of the two daughters was to receive a sum of Rs. 5,000 and the Plaintiff is not asking for anything more than her Rs. 5,000. Her present claim does not appear to affect in any wise the rights of her sister Kusum Kumari. One other point has been mentioned. It is said that it has not been decided whether the liability of the two brothers Protap Narain and Ram Narain is a joint or several liability, in other words whether each of them is liable for the whole Rs. 5,000 or only for Rs. 2,500. No difficulty however arises as to this, for Dr. Rash Behari Ghosh for the Respondent is willing to take a decree limiting the liability of each brother to Rs. 2,500 only. The decree must be modified by limiting the liability of each brother, that is, of each Defendant, to Rs. 2,500 only. Subject to this modification the appeal must be dismissed with costs.
Banerjee, J.:— I am of the same opinion.
S.C.S
D.C.M
Appeal dismissed.