Judgement Appeal from a decree of the High Court (July 9, 1901) affirming a decree of the Subordinate Judge of Pabna and Bogra (Jan. 31, 1899) dismissing the appellants suit. The appellants sued under the circumstances stated in the judgment of their Lordships, praying that the respondent might be decreed to execute and register a lease in favour of the appellants (a permanent ijara lease) in terms of an agreement of May 20, 1861, and that the Court might award specific performance of the said agreement in any other shape or manner, or award any other relief to the appellants which the circumstances of the case might justify. The respondent in his written statement submitted that the appellants were not entitled to the benefit of the said agree ment ; that there had been a total failure of consideration therefor by reason of Krishna Behari Roy (the appellants father) having, from the year 1862 to the year 1875, assailed the title of Banwari Lal Roy (the respondents father) instead of supporting and maintaining the same in accordance with the ekrar and solehnama mentioned in the judgment, and thereby put him to great loss and expense; and that under no circumstances should the said agreement be enforced without payment of the actual loss and damage so incurred. The Subordinate Judge, after saying that the delay in suing amounted to an abandonment of the agreement in suit, held that the conduct of Krishna Behari Roy in setting up his own title as the heir of Gour Sundar Roy (the last zemindar), and in strenuously disputing the title of Banwari Lal Roy, was a violation of the essentials of the agreement he had entered into, and disentitled him to the relief he sought from the Court. Referring to the ekrar, the judge held as follows— " The plaintiffs father by ekrar, dated the 10th Jeyt, 1268, solemnly covenanted never to deny the defendants fathers title. That promise is the sole consideration proceeding from the plaintiffs father, for which the defendants father, in return, confirmed the patni of Narsingpura and agreed to execute the lease in question. The plaintiffs father, unscrupulously and without any excuse whatever, broke that promise and kept the defendants father in anxious suspense of litigations for about fourteen years, involving his zemindari interest yielding an annual income of about 2 ½ lakhs of rupees. The plaintiffs father, unscrupulously and without any excuse whatever, broke that promise and kept the defendants father in anxious suspense of litigations for about fourteen years, involving his zemindari interest yielding an annual income of about 2 ½ lakhs of rupees. The plaintiffs father broke the most essential part of the contract. The contract, therefore, cannot be enforced (s. 28 (b) of the Specific Relief Act)." The judge relied also on Fry on Specific Performance, p. 423, and also on a statement of Lord Cranworth in Blackett v. Bates (( 1865) L. R. 1 Ch. 126.), where it is said “It is true that the intermediate period was filled up by legal proceedings which the plaintiff says he could not expedite, but they were proceedings in which the plaintiff was endeavouring to set aside the award. It is a strong thing to say that after a party has denied the validity of an agreement and taken proceedings to set it aside, he can, when the result of these proceedings has proved adverse, turn round and insist on specific performance." The High Court affirmed this judgment, saying " Virtually from the moment the compromise of the 8th Jeyt, of which the agreement now in suit according to the plaintiffs own case formed a component part, was concluded, Krishna Behari directed all his efforts to annulling its effect, and that upon allegations of fraud and unfair dealing on the part of Banwari Lal for which there would seem to have been not the slightest foundation; nor did he desist from these efforts until, in the year 1875, he was defeated in the Privy Council. Had he been successful, it is needless to say the agreement, which his heirs are now seeking to enforce, would have been waste paper. The whole of this long-protracted and, no doubt, costly litigation was in fraud of the compromise, and aimed, whether directly or otherwise does not seem to me under all circumstances to be material, at the rescission of the agreement and the subversion of the relation established by it." Upjohn, K.C., and Bonnerjee, for the appellants, contended that Banwari Lal was shewn to have received the full benefit of the compromise come to between him and Krishna Behari. That agreement was fully carried out in all its terms; so also was the agreement between Banwari Lal and Govinda Peari for a present lease of certain properties. Banwari got his recorded admission of title, which had rendered his title practically unassailable at least by kinsmen In fact, all that remained to be done was for Banwari or his heirs to execute on the death of Brajeswari Chowdhrani the permanent lease mentioned in the agreement sued on, and make over possession of the property to be comprised therein. Consequently Banwari Lal became and continued till his death a trustee for Govinda Peari of the interest agreed to be granted her on the said death. The respondent as heir to Banwari Lal was compellable as trustee to execute the lease in conformity with the agreement. The Court was bound to order him to do so in execution of his trust, and no question arose for the exercise of discretion. The compromise had been upheld by the Courts, and the heirs of Krishna or Govinda ought not to be deprived of a portion of the consideration to which they were entitled. Govindas separate and independent rights under the compromise ought not to be lost sight of, and she ought not to suffer for Krishnas conduct. Asquith, K.C., and C. W. Arathoon, for the respondent relied upon s. 28, clause B, of the Specific Belief Act, and contended that the Courts below were right in refusing specific performance as claimed. It was clear that Govinda was a mere name, and that the patni was in reality to be granted to Krishna, or for his benefit. In the events which had happened there had been a complete failure of consideration for the granting of the patni claimed. Banwari Lals object was to get his title by adoption admitted, and to be secure from further molestation on that subject. Krishnas conduct in persistently litigating that title was amply sufficient to disentitle him to the patni claimed, and the agreement was one of which specific performance was rightly refused. Upjohn, K.C., replied. The judgment of their Lordships was delivered by LORD DAVEY. Krishnas conduct in persistently litigating that title was amply sufficient to disentitle him to the patni claimed, and the agreement was one of which specific performance was rightly refused. Upjohn, K.C., replied. The judgment of their Lordships was delivered by LORD DAVEY. The suit out of which this appeal has arisen was one for specific performance of an agreement dated May 20, 1861, whereby Banwari Lal Roy, the father of the respondent, promised that when certain mehals (referred to in the case as Dhulauri) should come back into his khas possession he would settle the same on Srijuta Govinda Peari Dasi (the mother of the appellants) and her heirs in permanent ijara at a rental of Rs. 1001. It is alleged in the plaint, and it is clearly established by the documents in evidence, that this agreement was part of a compromise made between Banwari Lal Roy and Krishna Behari Roy (the husband of Govinda and father of the appellants), and formed part of the consideration for that compromise. The respondent refuses specific performance on the ground of failure of consideration and other equitable grounds. The facts of the case are as follws. Gour Sundar Roy died in February or March, 1834, childless, but leaving his mother, Hemlata Chowdhurani, and a widow, Brajeswari Chowdhurani, surviving. After his death Brajeswari adopted Banwari Lal Roy as the son of Gour Sundar. But for this adoption Krishna Behari Roy would have been the heir of Gour Sundar, and subject to the interests of the latters mother and widow would have succeeded to his estate. Hemlata appears to have assumed the management of the estate, and she purported to grant, but without any apparent authority to do so, four permanent leases of parts thereof, including leases of two mehals called Narsingpara and Sayandaha, to Krishna. After Banwari Lal came of age he made an arrangement with Brajeswari by which six annas of the estate were granted to her for her life for maintenance. In the month of May, 1861, Banwari Lal instituted a suit against Krishna to set aside the ijaras or permanent leases granted to him by Hemlata; and also instituted similar suits against the holders of the other permanent leases granted by her. A compromise was thereupon come to between Banwari Lal and Krishna, the terms of which are contained in four documents dated May 20 and 22, 1861. A compromise was thereupon come to between Banwari Lal and Krishna, the terms of which are contained in four documents dated May 20 and 22, 1861. The documents dated May 20, 1861, were (1.) The agreement now sued on. It should be mentioned that the property comprised in this agreement was included in the six annas granted to Brajeswari for her life, and would not therefore come into the khas possession of Banwari Lal until her death. (2.) A patni pottah, or permanent lease, of other mehals also in favour of Govinda, at a total rent of Rs. 689.4, upon payment of a premium of Rs.1301. An ekrar dated May 22, 1861, was then executed by Krishna in favour of Banwari Lal. It recited (amongst other things) that Brajeswari duly adopted Banwari Lal under the power contained in an anumatipatra executed in her favour by Gour Sundar on 28th Magh, 1240, B.S. It also recited the institution of a suit in 1858 by one Ganga Prosad Roy impeaching the anumatipatra and Banwari Lals adoption, which was dismissed apparently on the ground that even if the adoption was invalid Ganga Prosad Roy had no title in the lifetime of Krishna. The ekrar then continues as follows — " I, of course, made no mention of the anumatipatra granted by the late Gour Sundar Roy, and of your adoption, in my application to intervene in the said suit. Still as I consider it necessary to give you some proof that I do not in any manner or mode deny or refuse to acknowledge the truth of the said events, I execute this ekrar in your favour, in which I say that the said Gour Sundar Roy did, in fact, execute in favour of his wife Brajeswari Chowdhrani the said anumatipatra, and that in pursuance thereof, the said Chowdhrani, following the terms of the said anumatipatra, and with the permission and consent of her mother-in-law, the said Hemlata Chowdhrani, received you as a gift, under a deed of gift, and adopted you as a son according to the prescribed rites, and I, by way of attesting the said deed of gift as a witness, have placed my signature and affixed my seal amongst the witnesses, and I fully admit the truth of the anumatipatra executed by the late Gour Sundar Roy and of your adoption. And I also admit the correctness of the statement made by Brajeswari Chowdhrani to the effect that her husband, the said Gour Sundar Roy, had executed an anumatipatra in her favour to adopt a son, and that she had in pursuance thereof duly adopted you as a son, after having received you as a gift, and acknowledging you the lawful heir of the late Gour Sundar Roy, in her ekrar in your favour, dated the 29th Sraban 1264 B.S., which was filed in suit No. 36 of 1856 of the Court of the Principal Saddar Amin of this district. And you, as the adopted son of the late Gour Sundar Roy, now hold and will for ever hold to sons and grandsons and others in course of succession, as owner, having the rights of gift and sale, the movable and immovable properties left by him. To the said properties, I and my heirs do not have, nor will ever have, any claims or objection. If my heirs at any time in future do ever advance any claims it shall be rejected. To this effect I execute the ekrar. Finis, dated the 10th Jeyt." On the same May 22, 1861, Krishna filed a solehnama in Banwari Lals suit against him from which it appeared that Banwari Lal had agreed to ratify the lease of Narsingpara on receipt of a nazarana of Rs. 1500, and Krishna, on the other hand, had surrendered the lease of Sayandaha. The document concludes as follows — "I file also with this petition the ekrar which I have executed to-day on proper stamp in favour of the plaintiff containing my admissions of the authority to adopt which the late Gour Sundar Roy executed in favour of his wife, Brajes-wari Chowdhrani, and of the fact of due adoption by her of the plaintiff in pursuance thereof, and I pray that, on reading my petitions, &c, and also the petition which the plaintiff is filing, the plaintiffs claim for khas possession in respect of the aforesaid Sayaindaha mehal may be decreed, and his claim in respect of the remaining mehals may be dismissed." It is stated in the judgment of Hill J., in the High Court, that Krishna in his defence to Banwari Lals suit had impeached the adoption of Banwari Lal. And no doubt that was so, though the written statement is not in the record. And no doubt that was so, though the written statement is not in the record. But however that may be, it is plain from the documents which have been referred to that it was at least known or feared that Krishna intended to do so. And their Lordships have no hesitation in inferring that the principal object of Banwari Lal in entering into the compromise was to obtain from Krishna a clear admission of his title to the zemindari, and immunity in the future from attacks upon his title from that quarter. Within a short time, however, after making this compromise Krishna applied for leave to intervene in Banwari Lals then pending suits against the holders of the other permanent leases purporting to have been granted by Hemlata, and was made a defendant therein. He thereupon filed written statements in both suits impeaching the adoption, and alleging that the ekrar of May 22, 1861, had been obtained from him by fraud. The Court found against him on both points, and decrees were made in favour of Banwari Lal. Krishna appealed to the District Judge and thence to the High Court without success. In February, 1871, he instituted a suit of his own against Banwari Lal and his adoptive mother for the purpose of setting aside the adoption and obtaining a declaration of his own title as reversionary heir to Gour Sundar. His plaint and subsequent written statement contained charges of fraud and misrepresentation against both the defendants, the details of which it is unnecessary to consider. The suit was dismissed by the District Judge, and an appeal by Krishna to the High Court was also dismissed. He then appealed to Her late Majesty in Council, but without success. Govinda died in 1878. Banwari Lal died in 1880, and the present respondent is his heir. Brajeswari died in 1894, and Krishna died in 1895. The present suit was heard by the Additional Subordinate Judge of Pabna and Bogra, who, by his decree dated January 31, 1899, dismissed it with costs. That decree was affirmed on appeal to the High Court, and the present appeal is from the decree of the latter Court dated July 9, 1901. The present suit was heard by the Additional Subordinate Judge of Pabna and Bogra, who, by his decree dated January 31, 1899, dismissed it with costs. That decree was affirmed on appeal to the High Court, and the present appeal is from the decree of the latter Court dated July 9, 1901. The appellants sue as heirs both of Govinda and of Krishna, and the first point of the appellants counsel was that Govinda was entitled in her own right to the reversionary lease, and her title was not affected by the conduct of Krishna. In the High Court, Hill J. stated that the case of the appellants " here as in the Court below was, that the agreement was between their father and Banwari Lal, their mother, Gobinda Pyari Dasi, being named merely as a benamidar for the former, and it is in the character of his representatives that they sought, and still seek, to enforce the agreement." Without this statement their Lordships would have no difficulty in drawing the inference from the circumstances of the case that it was a benami transaction. In any case Govinda was not a purchaser from Krishna, and she could not have any better right or title than Krishna himself. The second and principal point of the appellants was characterized by more boldness than plausibility. It was that Banwari Lal had received the full benefit of the compromise by being armed with the ekrar as a shield against the attacks of Krishna, and, therefore, the agreement in suit was for an executed consideration, with the result that the respondent was in the position of a trustee for them. Their Lordships are not prepared to lay down as an abstract proposition that there is any necessary inconsistency in a party who has unsuccessfully tried to rescind an agreement afterwards claiming performance of it. But in the present case they think that Krishna not only tried to deprive Banwari Lal of the benefit of the agreement, but in a large measure succeeded in doing so. The security of his title to the zemindari was of immeasurably greater importance to Banwari Lal than the mere question of the putni. And their Lordships have already expressed their opinion that the principal consideration to Banwari Lal for the agreement was to obtain such security and immunity from future attacks. The security of his title to the zemindari was of immeasurably greater importance to Banwari Lal than the mere question of the putni. And their Lordships have already expressed their opinion that the principal consideration to Banwari Lal for the agreement was to obtain such security and immunity from future attacks. In short, they do not give the ekrar the restricted effect suggested by the learned counsel, but they think that its language necessarily imports an agreement by Krishna to abstain from questioning the validity of the adoption for the future. Their Lordships are of opinion that there has been a failure of the consideration for the agreement in suit, and also that the conduct of Krishna was at variance with, and amounted to a subversion of, the relation intended to be established by the compromise. They will, therefore, humbly advise His Majesty that this appeal should be dismissed, and the appellants will pay the costs of it.