Authored By : Francis Maclean, Macpherson, C.H. Hill

Francis Maclean, K.C.I.E., C.J.

1. This is a suit instituted by one Srimati Nistarini Dassias the widow and heiress of one Rai Mohendra Nath Bose against Rai Nunda LalBose, Rai Pasupati Nath Bose his brothers, in their personal character, andalso as executors of the last Will and Testament of her husband, the said lateRai Mohendra Nath Bose, and against one Srimati Kadumbini Dassi, a Hindu widow;and the object of the suit is to have a certain Trust Deed, of which the saidKadumbini Dassi was the surviving trustee, and dated the 24th of May 1877, anaward dated the 16th of July 1889, and a certain decree, dated the 29th ofAugust 1889, declared fraudulent and void as against her and in no way bindingupon the plaintiff, and to have the Will of the said Rai Mohendra Nath Boseconstrued and the rights of all parties thereunder ascertained and declared,for the administration of his estate, and for certain consequential relief.

2. The defendant Kadumbini Dassi did not appear in thissuit, but the other defendants put in written statements, and the case came onfor hearing in due course before Mr. Justice Stanley, and after hearing, whichoccupied many days, suggestions for a compromise of this and of otherlitigation between the parties were made.

3. It is alleged for the respondents in the present appeal,namely, the plaintiff, and the defendant, Pasupati Nath Bose, that aftercertain negotiations a compromise of this suit and the other suits, to which Ihave referred, was effected, that the defendant Nundo Lal Bose expresslyauthorized his counsel to consent to this compromise on his behalf, that theterms of the compromise came before Mr. Justice Stanley, and that he made adecree in terms of the compromise so alleged to have been entered into.

4. Nundo Lal Bose, the present appellant, however, contendsthat though admittedly there were negotiations for a compromise, he neverauthorized his Counsel to agree to the compromise alleged, that his Counsel hadno such authority, and that the compromise was not effective as against him.Holding that view, he, on the 15th of July 1899, gave the notice of motion, whichwill be found set out at page 1 of the paper book which in effect was oneasking the Court to stay the drawing up of the so-called compromise decree, andto have the alleged compromise set aside.

5. Although the defendant Kadumbini Dassi did not, as I saidbefore, appear to the suit or upon the hearing before Mr. Justice Stanley, shewas served with the notice of motion, and upon that motion coming on forhearing, Mr. Justice Stanley refused to hear her by her Counsel, on the groundthat as she had not previously appeared in the suit, she was not entitled to beheard on the motion.

6. The motion was supported by two affidavits of Nundo LalBose himself with certain documents exhibited to those affidavits and by theaffidavit of Hirendra Nath Dutta, the solicitor of Nundo Lal Bose, of oneBenode Behary Bose, the son of Nundo Lal Bose, and of one Nilratan Sen, whoappears to have been a friend of the defendant Nundo Lal Bose, and to have beenpresent at some of the interviews to which I shall refer in a moment, as also ajoint-affidavit in reply by Hirendra Nath Dutta and Nundo Lal Bose.

7. The respondents supported their case by an affidavit ofRomesh Chunder Bose, the attorney of the plaintiff, of one Monmotho NathSingha, a brother of the plaintiff, of the said Pasupati Nath Bose, and of hissolicitor Gonesh Chunder Chunder, and by a statement made from his place at theBar by Mr. R. Mitter, a member of the Bar and an advocate of this Court, andwho was at the time leading Counsel for Nundo Lal Bose.

8. The matter was heard before Mr. Justice Stanley on threeor four days during the month of last July, and, in the result, Mr. JusticeStanley dismissed the application with costs, and Nundo Lal Bose has appealedto this Court.

9. His principal ground of appeal is that he never gave Mr.Mitter any authority to settle litigation, involving not only this suit butsome other four or five suits, upon the terms of the alleged compromise. Hefurther challenges the decree made on the ground that the learned Judge in theCourt below ought not to have accepted the unsworn statement of Mr. Mitter whenobjection was taken by the appellants Counsel that Mr. Mitter ought to havebeen sworn, that the decree was made in the absence of Kadumbini Dassi who wasa party, and a necessary party to the suit, and that the decree determinescertain trusts and provisions relating to a portion of the property in dispute,which under the award and decree of 29th August 1889 was declared to beDebuttar, and that it was not competent to the Court with the consent only ofsome of the parties interested, to set aside the decree of the 29th August1889, which was a decree of a competent Court, and in the absence of thosemembers of the family who were, or who might be interested in maintaining theDebuttar character of such property.

10. On the present appeal, we have allowed the respondent,Kadumbini Dassi, to be heard by her Counsel, and to put in an affidavit, whichshe desired to put in the lower Court, but which she was unable to put in byreason of the ruling of the learned Judge that he could not hear her. In ouropinion, as she was a party to the suit and had been served with notice of theapplication to set aside the compromise decree, she was entitled to be heard.

11. It must be obvious, from what I have said, that if weare of opinion upon the evidence--for it is a question of fact--that thepresent appellant did not authorize his Counsel Mr. Mitter, to consent to thiscompromise, the compromise decree cannot stand, and equally obvious that theother questions, except that, as to the admissibility of Mr. Mittersstatement, would become of no practical importance; and the stress of theargument adduced on behalf of the respondents Counsel has been to show thatsuch authority was, in fact, given by Nundo Lal Bose to Mr. Mitter.

12. There cannot, I think, be any reasonable doubt at thepresent day that Counsel possesses a general authority,--an apparent authority,which must be taken to continue until notice be given to the other side by theclient that it has been determined--to settle and compromise the suit in whichhe is actually retained as Counsel, and in the exercise of his discretion to dothat which he considers best for the interest of his client in the conduct ofthe particular case in which he is so retained. Here, however, the compromiseextended to collateral matters, to matters quite outside the scope of theparticular case in which Mr. Mitter was retained as Counsel, and, in order tobind the client, it must be shown that Mr. Mitter had, from his client, aspecial authority to compromise, and compromise upon the definite terms whichare set up by the present respondents. This proposition was not disputed in thelower Court, nor has it been contended for before us. As to the authority ofCounsel to compromise on behalf of his client, I may refer to the cases ofStrauss v. Francis (1866) L.R..1Q.B., 379; Sivinfen v. Swinfen (1857) 1C.B.N.S., 364: 2 De. Gex. and Jones, 381; and Matthews v. Munster (1887) L.R.,20 Q.B. D141.

13. There are other authorities, but I need not refer tothem as the proposition of law is not questioned.

14. Before I deal with the facts of the case, I must say aword or two as to whether or not the statement of Mr. Mitter, not being onoath, was admissible in evidence. So far as my personal experience goes, it hasbeen the undoubted practice in the Courts in England to accept the statement ofCounsel in matters of this nature, statements made from their place at the bar.I am not prepared, however, to go so far as to say that if that course beobjected to by the opposite side, the party putting forward such statementcould insist upon its being made without the sanctity of an oath. In the recentcase of Wilding v. Sanderson (1897) 2 Ch. D 534, it was thought prudent, asthere was some doubt upon the point, to have the learned Counsel sworn, as theywere, and they gave their evidence from their places at the bar. That coursewas not adopted in the case of Hickman v. Berens (1895) 2 Ch. D 638 but there isnothing in that case to indicate that any objection was raised. I entertaingreat doubt whether, if there be any such objection, the other side can insistupon the statement being accepted, unless upon oath, and in making thisobservation, I am not unmindful of what Lord Esher is stated to have said--forwe have not Lord Eshers own words--that he would never admit an affidavit insuch cases. I should have thought, however, that as a matter of substance, thematter was not of much practical importance, for I can scarcely suppose thatany Counsel, if he understood that the other side were not prepared to accepthis statement made upon his word of honor, would not himself ask that he mightbe allowed to give his evidence in the usual way. I need not discuss thismatter further, for we should not have been disposed to allow the appeal onthis ground, but if necessary would have given the respondent the opportunityof putting in an affidavit by Mr. Mitter, saying that his statement before theCourt below was a true one. In this view it becomes unnecessary to discusswhether, as the Advocate-General urged, the statement was admissible, not onlyunder the Indian Evidence Act, but as a statement made by a quasi officer ofthe Court to whose word some sort of special sanctity must be taken to attach,a proposition which, before its acceptance, would require much consideration;or to deal with the argument of Sir Griffith Evans that having regard toSection 13 of the Oaths Act, it made no difference whether the statement was orwas not upon oath, a proposition which is at once novel and startling, andwhich, if well founded, must apply to the case of every witness, and possiblyto every Juryman.

15. I will now proceed to deal with the facts of the case,and, I think, I am doing no injustice to the judgment of the learned Judge inthe Court below when I say that it appears to be almost entirely based upon thestatement of Mr. Mitter, which the learned Judge regards as clear, cogent andconvincing. Save a quite passing reference to the evidence of Benode BeharyBose and Hirendra Nath Dutta I can find no reference to any of the affidavitson either side, nor can I discover any analysis of the statement made by Mr.Mitter himself. This, to my mind, is a case in which the evidence ought to bescrutinized with very careful attention.

16. I will now deal with Mr. Mitters statement with theview of ascertaining and determining whether, if there were nothing but thatstatement in the way of evidence in the case, the respondents havesatisfactorily made out that the appellant Nundo Lal did give an express, orspecial, authority to his Counsel to consent to the terms of the compromise.

17. It is not necessary to go back further than Monday, the26th June, when it was mentioned to the Court that negotiations for settlementwere proceeding, and the case was adjourned. It is clear from Mr. Mitters ownstatement that at the consultation, which took place between Nundo Lal Bose andhis Counsel, on Monday, Nundo Lals offer was to pay Rs. 60,000 to theplaintiff as a lump sum to be paid by instalments, and that on that occasionNundo Lal Bose never agreed to pay any of the plaintiffs costs, but waswilling to pay a lump sum to cover everything. There were several other pointsdiscussed at that interview, but to cite Mr. Mitters own words, our offer wasthat "each party was to pay their costs." It will be seen from this,that from the very outset the appellant objected to paying the plaintiffscosts of the suit, which admittedly amounted to a very large sum. According toMr. Mitter he handed over the terms to Mr. Bonnerjee, who was the plaintiffsleading Counsel, the same day (Monday), and Mr. Bonnerjee said that his clientwould not take the Rs. 60,000, but she must have the costs as between party andparty. It is obvious that from the very first, one of the main, if not the mainpoints in dispute was the payment of the plaintiffs costs of the suit.

18. On Tuesday morning, the 27th, the case again stood over,and ultimately on that day Mr. Bonnerjee put down his terms in writing; andthose terms were given to Mr. Mitter.

19. I may here interpose that according to the evidence ofBabu Gonesh Chunder Chunder, who was the attorney for Pasupati Nath Bose (seeparagraph 14 of his affidavit) Mr. Mitter, Mr. Bonnerjee and himself had onTuesday a discussion as to the terms of the proposed compromise, and it wasarranged that Mr. Mitter should see the defendant Nundo Lal Bose and try toinduce him to accept the plaintiffs terms of payment to her of Rs. 40,000, andher party and party costs of the suit, and that Mr. Mitter left that interviewin order to see Nundo Lal Bose, that he came back to the Bar Library after ashort time, and told Mr. Bonnerjee and Babu Gonesh Chunder Chunder that he hadsucceeded in inducing Nundo Lal Bose to accept the above last mentioned terms,and that thereupon Mr. Bonnerjee put the terms into writing and wrote out theExhibit marked A. Mr. Mitter does not say a word about all this. It is,therefore, reasonably clear that the memory either of Mr. Mitter, or of BabuGonesh Chunder Chunder, must be defective upon this point.

20. However be that as it may, Mr. Mitter saw Nundo Lal atabout 1 oclock in Mr. Chakravartis Chambers, and there were present at thatinterview besides the two Counsel Mr. Mitter and Mr. Chakravarti, Nundo Nal,his two sons, his attorney, Babu Hirendranath Dutta and his friend one NilratanSen.

21. I may, perhaps, mention that when this motion was beingheard before Mr. Justice Stanley, Counsel for Nundo Lal asked that Mr.Chakravarti should be asked to state his recollection of what passed, but thelearned Judge in the Court below declined to allow that course to be pursued.

22. On the occasion of this interview on Tuesday Mr. Mitterwent through with the present appellant all the terms suggested by Mr.Bonnerjee and wrote down his objections, and I will take it for the moment thatthe paper Exhibit B. did indicate all the objections which Nundo Lal had to Mr.Bonnerjees terms.

23. It is perfectly clear that at that interview Nundo Lalwas unwilling to pay the costs of the suit as between party and party. Mr.Mitter says so, and he also says that the only two points as to which there wasany difference were the party and party costs of the suit and the costs of suitNo. 68. However he sums up the result of these interviews by saying that bothhe and Mr. Chakravarti were perfectly certain that the only thing that stood inthe way of a settlement was the plaintiffs claim to a separate house worth Rs.10,000, or the value thereof. I confess feeling some difficulty as to how Mr.Mitter could have arrived at this conclusion, in the face of his own memorandumin writing which indicates that there were other points in dispute still open.

24. Mr. Mitter then went back to Mr. Bonnerjee, and Mr.Bonnerjee on behalf of his client refused to accept the terms as proposed byMr. Mitter.

25. There then for the moment was an end of the matter inthe sense that the negotiating parties were not at one, and that there was thenno concluded agreement of compromise.

26. The only express or special authority, which Mr. Mitterthen had to compromise on behalf of his client Nundo Lal Bose, was thus at anend, as Mr. Bonnerjee would not accept the terms proposed by Nundo Lal Bosethrough his Counsel Mr. Mitter. I am taking it that looking at Exhibit B. thewords as to all parties paying their own costs applied only to suit No. 68 of1898. That suggestion was, however, met by a direct negative from Mr.Bonnerjee, but I am not unmindful that Mr. Mitter says that he understood NundoLal to say that was not to stand in the way of a settlement.

27. On Tuesday then no agreement binding on either party hadbeen arrived at. On Wednesday, the 20th, it was stated to the Court that theparties had been unable to come to terms, and the case was again adjourned inthe hope of an amicable settlement. Mr. Mitter stated that there was only onevery small item, which had not been settled, but, if the evidence filed onbehalf of the appellant to be trustworthy, Mr. Mitter must have known on theTuesday afternoon, that even if in his interview with Mr. Mitter on the TuesdayNundo Lal Bose had agreed to pay the plaintiffs costs of this suit he hadresiled from that position later on in the same day. It is quite clear on Mr.Mitters own showing that Nundo Lal never agreed to contribute anything towardsfinding a residence for the plaintiff, and it is equally clear that on theevening of the Wednesday Mr. Mitter was expressly told that Nundo Lal was notwilling to pay the plaintiff her party and party costs. On the Wednesday thenthe whole matter was open, for the terms offered by Nundo Lal through Mr.Mitter had not been accepted; that this was so is clear from Mr. Bonnerjeesstatement on the Thursday morning to the Court: "I am sorry to say we havebeen unable to settle and the case must proceed," and the case didproceed.

28. By the Thursday morning then there was no agreement ofsettlement, and it is important to see what took place on that day in the wayof express authority being given to Mr. Mitter to compromise on his clientsbehalf. After the midday adjournment on that day Mr. Mitter mentioned to theCourt that the case had been settled, the only obstacle in the way of settlementhaving been removed. I will quote what he says: "I was also informed byHirendra Nath Dutta that Gonesh Chunder and Pusupati had gone to see Nundo Lalon the subject and before the mid-day adjournment I was informed that Pusupatihad consented either to buy a house worth Rs. 10,000 or to pay the Rs. 10,000himself. The only obstacle in the way of settlement being removed your Lordshipwill remember that Mr. Woodroffe was putting in some Bengali accounts, whichhad not been translated, I said that Mr. Woodroffe would undertake to translatethem, if necessary, because I had then been informed that the only obstacle hadbeen removed, and after the mid-day adjournment I mentioned to the Court thatthe case had been settled. Hirendra Nath Dutta was present in Court at thattime and also Binode, and the other son of Nundo Lal and also Babu RomanathGhosa and several others. Then the terms were fair copied in Court by Mr.Shelley Bonnerjee, and whilst being copied, I was told by Hirendra Nath Duttathat Nundo Lal wanted to see the terms. I told him that the terms were the sameas agreed to by him on Tuesday last. The only difference was that theplaintiffs maintenance, instead of being a charge upon moffusil properties,had been charged upon the dwelling houses of Nundo Lal and Pasupati. HirendraBabu said that Nundo Lal was particularly anxious to see the terms."

29. I feel some difficulty in understanding how Mr. Mittercould have thought, and told the Court that the only obstacle in the way of asettlement had been removed, when on the previous evening he had been expresslytold that Nundo Lal was unwilling to pay the plaintiffs costs, or whatauthority he had to agree to the terms of the previous Tuesday, as in theinterval, Nundo Lal had told him that he would not pay the party and partycosts of the plaintiff.

30. I can only suppose that this important point has escapedhis memory. Taking Mr. Mitters statement most favourably to the plaintiff, theonly special authority which Nundo Lal gave Mr. Mitter was to agree to Mr.Bonnerjees terms in Ex. A., as modified by Ex. B. and when those modificationswere rejected by Mr. Bonnerjee it seems to me that Mr. Mitters specialauthority was determined, and that in order to bind Nundo Lal, as to any freshterms, a further special authority would be requisite.

31. We now come to the interviews of the 29th between Mr.Mitter and Nundo Lal at which the solicitor Hirendra Nath Dutta, Nundo Lalsson, Romanath Ghose, and one Nil Ratan San were present. Mr. Justice Stanleywould appear to regard this as the only important part of the statement; I amunfortunately unable to share that view, for, to my mind, it is extremelyimportant to ascertain what preceded that interviews It is quite clear that atthat interview Nundo Lal objected to pay the party and party costs of theplaintiff or her costs of suit No. 68. He commenced the conversation in thatway.

32. It is clear that be was determined not to pay thosecosts, for he had told Babu Gonesh Chunder Chunder only an hour or so beforethat he would not pay the plaintiffs costs. Seeing Nundo Lal in that state ofmind, his solicitor very properly suggested to the Counsel that he should getthe terms signed by Nundo Lal, when Mr. Mitter said that he would not insultNundo Lal by asking him to put his signature to the paper. The suggestion ofthe solicitor is, to my mind, very significant by indicating that he at anyrate was under the impression that there was at least great doubt whether NundoLal was agreeing to the terms. Nundo Lal said nothing more. He only smiled andMr. Mitter told him, "I am going back to Court and these terms will be putin," and he also told him that he was going to consent on his behalf, towhich Nundo Lal said nothing, and so the interview came to an end.

33. If this were all the evidence in the case I shouldentertain a very grave doubt whether, having regard to the fact that Nundo Lalhad at the very outset of the interview of 29th said that he would not pay theparty and party costs of the plaintiff in this suit, but only a specified sum,and would not pay the costs of Suit No. 68, we should be justified in holdingthat under the circumstances narrated by Mr. Mitter, the latter was justifiedin consenting to the minutes, or that we should be justified in saying thatNundo Lal gave him express authority to consent to these terms. I do not thinkwe should be warranted under all the circumstances in inferring from the smileand the subsequent silence of Nundo Lal Bose, a tacit acquiescence on his partto the terms proposed, or as giving any authority to Mr. Mitter to consent onhis behalf.

34. It is significant that according to Mr. Mitters ownstatement the solicitor Hirendra Nath Dutta followed him into Court and toldhim that he had no instruction from him to consent to this compromise.

35. I have hitherto dealt with the case entirely upon thestatement of Mr. Mitter, but there is a great deal of evidence in the matter towhich the learned Judge in the Court below has given no attention. We have theaffidavits filed on behalf of the appellant, and, if the story of thesewitnesses is to be believed and none of them have been cross-examined, NundoLal Bose never did agree to the terms of this compromise or authorized hisCounsel to agree to them. As regards Nundo Lals affidavits I will only dealwith those portions of them in which he speaks from his own personal knowledge.He tells us in paragraphs 18 to 20 of his affidavit, the terms upon which hewas prepared to settle the matter at his interview with Mr. Mitter on Tuesday,the 27th. It is to my mind reasonably clear that, whilst he did not object topay Rs. 20,000 towards the plaintiffs costs of this suit, which sum wassubsequently raised to Rs. 25,000, he did object to an unlimited liability in respectof those costs, and he tells us that at this interview he did not give Mr.Mitter authority to settle the suit on his behalf. He tells us that at theinterview at which he was present at his attorneys office at about half-past12 on the 29th (the Thursday) he absolutely declined to settle the suit unlessthe costs of the plaintiff in the suit were limited to Rs. 20,000 and in thishe is substantially corroborated by Gonesh Chunder Chunder himself who saysthat Nundo Lal said" I wont pay any costs of the plaintiff, why should Ipay any costs to her and settle this suit." This is extremely probable ashe had learnt that the costs would be very heavy, certainly exceeding 25,000rupees.

36. And, now I come to what he says as to the interviewbetween Mr. Mitter and himself on Thursday, the 29th, and his account of thatinterview will be found at paragraphs 43,48, and 49 of his affidavit. I mayperhaps here interpose the observation that Mr. Mitter, at the moment that heleft the Court to see Nundo Lal on the Thursday, could scarcely have thoughtthat he had any sufficient authority from him to consent to the proposedcompromise, for, if so, he would not have thought it necessary to go outsidethe precincts of the Court to the office of the attorney who was instructinghim to interview his lay client. It is clear that at this interview thedefendant Nundo Lal went through the proposed terms and put marks in bluepencil against those terms to which he objected, one of which admittedly was asto the payment of the party and party costs and the costs of Suit No. 68. IfNundo Lal is to be believed he pointed out other objections as well. It is,however, very unfortunate that this document is not forthcoming; itsdisappearance is not, I think, satisfactorily accounted for. Nundo Lal says henever authorized Mr. Mitter to accept the terms of the compromise, or tocompromise or settle the suit on those terms, and it will be observed that Mr.Mitter himself does not go so far as to say that he had authorized him, butonly that he honestly believed that Nundo Lall had accepted the terms. I am notdesirous of making or suggesting any imputation upon Mr. Mitter in the matter:I am prepared to accept, to the fullest extent, his statement as to the honestyof his belief that Nundo Lal had authorized him to act as he did; for I shouldbe sorry to think that any member of the bar could act as Mr. Mitter has done,unless he were under such a belief. But the question of such an honest beliefin the mind of Counsel is one thing, whilst the question of whether specialauthority to settle were actually given by the client is quite another. As tothis interview between Mr. Mitter and Nundo Lal Bose, the latters account ofit is corroborated by his solicitor Hirendra Nath Dutta, his son Benode BeharyBose, and Nilratan Sen, as to which evidence the learned Judge in the Courtbelow has been altogether silent. It would appear from the evidence of HirendraNath Dutta that at the interview which took place between Mr. Mitter and Nundo Lalon Tuesday, when Mr. Bonnerjees written terms were discussed, an assurance wasgiven to Nundo Lal that the plaintiffs costs of the present suit would notexceed Rs. 20,000, and according to his statement the consent of Nundo Lal topay those costs was conditional upon the other terms upon which he insistedbeing complied with, and that afterwards when Nundo Lal learnt from hissolicitor that the costs of the suit would, in all probability, exceed Rs.20,000, he instructed his solicitor to go to Mr. Mitter and tell him that hewould not pay those costs, unless they were limited to that amount, and thesolicitor says he went and told Mr. Mitter so, and if this story be true, andit is not an improbable one, Mr. Mitter knew on the Tuesday, through his own professionalclient, that Nundo Lal Bose would not pay the party and party costs of theplaintiff of the suit, unless they were limited to Rs. 20,000. Anyway he knewon the Wednesday evening.

37. Nundo Lal Boses story is corroborated in important particularsby the evidence of the witnesses he has called, and coupling that evidence withMr. Mitters own statement, I think it clear that Nundo Lal Bose was throughoutdetermined not to pay these costs, if they exceeded Rs. 20,000 or Rs. 25,000.

38. I must now say a word or two as to what occurred afterthe interview on the Thursday. After some conversation between Nundo Lalssolicitor, and his son and his friend Nilratan Sen, the solicitor, HirendraNath Dutta followed Mr. Mitter into Court and made the observations which hestates in paragraph 47 of his affidavit and which are corroborated by the sonBenode Behary Bose. Mr. Mitter admits that something to the effect stated byHirendra Nath Dutta passed, but he says that he does not recollect the exactwords, but that something was said about responsibility in the matter isapparent, not only from the evidence filed on behalf of the appellant, but alsofrom that filed on behalf of the respondent, and Babu Gonesh Chunder Chunder,though he denies hearing what Babu Hirendra Nath Dutta says he said as to hisclient not being willing to settle the suit/admits that he heard somethingbeing said about responsibility in settling the suit, but that he regarded itas a joke. It must be remembered, in this connection that only an hour or twopreviously Gonesh Chunder Chunder himself had heard Nundo Lal say that he wouldnot pay the plaintiffs costs and why should he settle the suit.

39. Looking then at the evidence, as a whole, I am satisfiedthat Nundo Lal Bose did not authorise his Counsel Mr. Mitter to accept theterms of the proposed compromise.

40. It is contended, however, that, as the respondents werenot told that Mr. Mitter had no authority to settle, the appellant is bound. Iam unable to take that view. Counsel no doubt has an apparent authority tocompromise the case in which he is retained, and the other side are entitled torely upon the continuance of that apparent authority, until they receive noticethat it has been determined. But that principle does not apply to the presentcase, where an express or special authority was requisite. The respondent mustbe taken to know that as this compromise covered matters outside the scope ofthe suit an express authority to Mr. Mitter to settle was requisite, and if, infact, that authority were not given, the respondents cannot avail themselves ofthe position that they did not know that it had not been given. They were notentitled to assume as in the case of an apparent authority that it was givenand was existing. This is pointed out by Crowder, J., in the case of Swinfen v.Swinfen (1857) 1 C.B.N.S., 364. That learned Judge says: "If therefore insuch a case (i.e. a case of special authority given) a Counsel under amisapprehension of his clients instructions, and believing himself to haveauthority, acts in fact without it, he cannot in my opinion bind hisclient."

41. In this view it becomes immaterial to consider whethersuch a compromise, even if otherwise binding, should have been adopted by theCourt in the absence of Kadumbini Dassi, though I must confess I feelconsiderable doubt upon the point, nor is it necessary to decide the question,whether it was competent to the Court by this compromise decree not made in thepresence of all the members of the family of Nundo Lal Bose and Pasupati NathBose, to virtually set aside the decree of the 29th August 1889, which haddeclared that certain portions of the property in dispute were clothed with aDebuttar character, and to direct part of She property to be divided betweenNundo Lal Bose and Pasupati Nath Bose.

42. For the reasons I have given, the appeal must succeedand the order of the Court below must be discharged, and Nundo Lal Bose musthave the costs of the motion in the Court below.

43. As regards the costs of this appeal, seeing that therespondents have at the bar offered to the appellant all that, and even morethan he had previously asked for with a view of putting an end to thislitigation, there will be no costs of this appeal.

Macpherson, J.

44. I agree.

C.H. Hill, J.

45. I also agree.

.

Nundo Lal Bose vs.Nistarini Dassi (10.01.1900 - CALHC)