Full Judgment Text
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PETITIONER:
SAHU MADHO DAS AND OTHERS
Vs.
RESPONDENT:
PANDIT MUKAND RAM AND ANOTHER(and connected Appeal)
DATE OF JUDGMENT:
22/03/1955
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION:
1955 AIR 481 1955 SCR (2) 22
ACT:
Compromise or family arrangement-Proof of-Assumption of
antecedent title of some sort in the parties-Reversioner’s
assent to an alienation-Legal effect thereof.
HEADNOTE:
A family arrangement can, as a matter of law, be inferred
from a long course of dealings between the parties.
It is well settled that a compromise or family arrangement
is based on the assumption that there is an antecedent title
of some sort in the parties and the agreement acknowledges
and defines what that title is, each party relinquishing all
claims to property other than that falling to his share and
recognising the right of the others, as they had previously
asserted it, to the portions allotted to them Respectively.
That explains why no conveyance is required in these cases
to pass the title from the one in whom it resides to the
person receiving it under the family arrangement. It is
assumed that the title claimed by the person receiving the
property under the arrangement had always resided in him or
her so far as the property falling to his or her share is
concerned and therefore no conveyance is necessary.
But in view of the fact that the Courts lean strongly in
favour of family arrangements that bring about harmony in a
family and do justice to its various members and avoid, in
anticipation, future disputes which might ruin them all the
Supreme Court, carrying the principle further, upheld an
arrangement under which one set of members abandons all
claim to all title and interest in all the properties in
dispute and acknowledges that the sole and absolute title to
all the properties resides in only one of their number
(provided he or she had claimed the whole and made such an
assertion of title) and are content to take such properties
as are assigned to their shares as gifts pure and simple
from him or her, or as a conveyance for consideration when
consideration is present.
The legal position in such a case would be this. The
arrangement or compromise would set out and define that the
title claimed by A to all the properties in dispute was his
absolute title as claimed and asserted by him and that it
had always resided in him. Next, it would effect a transfer
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by A to B, C and D (the other members to the arrangement) of
properties X, Y and Z; and thereafter B, C and D would hold
their respective titles under the title derived from A. But
in that event, the formalities of law about the passing of
title
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by transfer would have to be observed, and under the present
state of law either registration or twelve years’ adverse
possession would be necessary. But in the present case
the arrangement was made in 1875 when the Transfer of
Property Act was not in force and no writing was required;
and as there is no writing, the Registration Act does not
apply either. Therefore, the oral arrangement of 1875 would
be sufficient to pass title in this way and that is what
happened.
Once a reversioner has given his assent to an alienation,
whether at the time, or as a part of the transaction, or
later as a distinct and separate act, he is bound though
others may not be, and having given his assent he cannot go
back on it to the detriment of other persons; all the more
so when he himself receives a benefit.
It is settled law that an alienation by a widow in excess of
her powers is not altogether void but only voidable by the
reversioners, who may either singly or as a body be
precluded from exercising their right to avoid it either by
express ratification or by acts which treat it as valid or
binding.
The principle applicable to the present case is a rule
underlying many branches of the law which precludes a person
who, with full knowledge of his rights, has once elected to
assent to a transaction voidable at his instance and has
thus elected not to exercise his right to avoid it, from
going back on that and avoiding it at a later stage. Having
made his election he is bound by it.
Held, that in the present case the plaintiff who is in
titulo now that the succession has opened out, had
unequivocally assented to the arrangement with full
knowledge of the facts and accepted benefit under it, so he
is now precluded from avoiding it, and any attempts he made
to go behind that assent when it suited his purpose cannot
render the assent once given nugatory even though it was
given when he was not in titulo and even though the assent
was to a series of gifts.
Mst. Hardei v. Bhagwan Singh, (A.I.R. 1919 P.C. 27); Clif-
ton v. Cockburn ( [1834] 3 My. & K. 76); William v. William
[1866] L.R. 2 Ch. 294); Bani Mewa Kuwtivar v. Rani Hutlas
Kuwar [1874] L.R. I I.A. 157); Khunni Lal v. Gobind Krishna
( [1911] L.R. 38 I.A. 87); Bamsumirn Prasad v. Shyam Kumar (
[1922] L.R. 49 I.A. 348); Baia Modhu Sudhan Singh v Booke (
[1897] L.R. 24 I.A. 164); Bijoy Gopal v. Sm. Krishna [1906]
L.R. 34 I.A. 87); Ramgouda Annagowda v. Bhauaheb ( [1927]
L.R. 54 I.A. 396); Dhiyan Singh v. Jugal Kishore ( [1952]
S.C.R. 478 at 488); Rangaswami Gounden v. Nachiappa Gouinden
( [1918] L.R. 46 I.A. 72 at 86 & 87), referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 92 and 94
of 1950.
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Appeals from the Judgments and Decrees dated the 20th March
1942 of the Allahabad High Court in First Appeal Nos. 154
and 152 of 1934 arising Out Of the Judgments and decrees
dated the 25th August 1932 of the Court of First Additional
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Subordinate Judge, and First Additional Civil Judge,
Moradabad in Original Suit Nos. 90 and 87 of 1931
respectively.
N. C. Chatterji, (S. S. Shukla with him) for the
Appellants.
Gopi Nath Kunzru, (B. P. Maheshwari with him)
for Respondent No. 1.
P. C. Agarwala, for Respondent No. 2 in Civil Appeal No.
94 of 1950.
1955. March 22. The Judgment of the Court was delivered by
BosE J.-These appeals arise out of two suits which were
heard together along with two other suits with which we are
not now concerned. All four raised the same set of
questions except for a few subsidiary matters. They were
tried together and by common consent the documents and
evidence in the various cases were treated as common to all.
They were all governed by one common judgment, both in the
first Court and on appeal. The defendants appeal here.
The plaintiff, Mukand Ram, is common to all four cases. He
sues in each suit as the reversioner to one Pandit Nanak
Chand who was his materdal grandfather. The family tree is
as below:
25
Nanak Chand d. 23-7-75
W: Mst. Pato. d. Jan. 1875.
Mst. Maha Devi Mst. Durga Devi Mst. Har Devi
d. 1912 d. 1888 d. 10-9-19
H: Nathmal Das H: Jwala Prasad H: Bhawani
Shankar
Mst. Ram Pyare
Bhukhan Saran Banwari Lal Sital Prasad Shyam Lal Pyare-
Lal
(dead) (dead) (deft.5)
Brij Lal Mukand Ram
(dead) (Plff.No.1)
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The plaintiff’s case is that the properties in the four
suits belonged to Nanak Chand who died on 23-7-1856 leaving
a widow Mst. Pato and three daughters, Maha Devi, Durga
Devi and Har Devi. On his death, his widow Mst. Pato
succeeded. She died in January 1875 and the estate then
went to the three daughters. Of them, Durga Devi died in
1888, Maba Devi in 1912 and Har Devi in 1919. The
plaintiff’s rights as reversioner accrued on Har Devi’s
death on 10-9-1919. But before this came certain
alienations which the plaintiff challenges in the present
suits. The suits were filed on 8-9-1931.
In Civil Appeal No. 92 of 1950, the challenge is to a
mortgage effected by Durga Devi on 3-3-1887 in favour of
Sahu Bitthal Das. The mortgagee sued on his mortgage,
obtained a decree and in execution purchased the properties
himself. The plaintiff’s case is that Durga Devi only had a
life estate and, as there was no necessity, the mortgage and
the subsequent auction purchase do not bind him.
In Civil Appeal No. 94 of 1950, there are two alienations,
both sales. The first, dated 23-9-1918, was by Pyare Lal
(son of Durga Devi) in favour of Shyam Lal, son of Mulchand.
(This is not the Shyam Lal who was Pyare Lal’s brother).
The vendee later sold the properties to the first and second
defendants on 5-3-1927. One of the vendees, the first
defendant, is yet another Shyam Lal: Shyam Lal son of
Harbilas.
The other sale was by Brij Lal’s guardian on behalf of Brij
Lal, Brij Lal then being a minor. It was on 25-11-1919 in
favour of Chheda Lal. The first and second defendants
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preempted this sale after a fight in Court and took
possession under the decree which they obtained.
The plaintiff’s case is that Har Devi was alive at the date
of the first sale and as the reversion had not opened out
Pyare Lal bad no power to sell. In the case of the second
sale, the reversion had opened out but Brijlal being more
remote than the plaintiff got no title, so that sale is also
bad.
The defendants’ case is that the properties in these
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two suits (as also in the other two suits with which we are
no longer concerned) did not belong to Nanak Chand and
formed no part of his estate; they belonged exclusively to
Mst. Pato as part of her personal estate.
On 22-1-1864 Mst. Pato executed a document which she called
a deed of agreement but which, if it is anything at all, is
a will. There are no other parties to it and she purports
thereby to dispose of her properties after her death. The
defendants in Civil Appeal No. 92 of 1950 have called it a
will. After saying that she will remain in possession and
occupation as long as she lives, Pato says that after her
death her three daughters will be the owners and will either
remain joint possession or will divide the estate in equal
shares and, in that event, will take possession of their
respective shares and will be the "owners" of them.
But before she died Pato made another disposition of her
estate during her life time in the year 1875 which, of
course, abrogated the will. This was done orally. The
defendants say that this was a family arrangement in which
each of the three daughters was given certain properties
absolutely so that each became the absolute owner of
whatever fell to her share. Pato also gave properties to
each of her four grandsons who were then living, namely
Kanhaiya Lal, Mukand Ram, Banwari Lal and Sital Prasad. The
defendants asserted that they also took separate and
absolute estates immediately and said that each has been
holding and dealing-with the properties so divided,
separately and as absolute owners, ever since. Thus, at the
dates of the transfers now challenged, each alienor had an
absolute title to the properties alienated and the plaintiff
has none.
The trial Court held that though most of the properties in
Pato’s hands came from her husband Nanak Chand, the
plaintiff bad not shown that the properties with which his
four suits were concerned formed part of Nanak Chand’s
estate.
An issue was also framed about the family settlement and one
about estoppel. On both those point
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the learned Judge found against the plaintiff. The result
was that all four suits were dismissed.
The High Court reversed these findings on appeal and held
that all the properties, including the ones in suit, formed
part of Nanak Chand’s estate.The learned Judges also held
that though there was a family arrangement, it was a purely
voluntary settlement made by Pato and was not made as the
result of any dispute and that in any case it did not bind
the plaintiff who was not a party to it and who does not
claim through any of those who were. They also held that
there was no estoppel. Accordingly, the plaintiff’s claim
was decreed in each of the four suits.
Appeals were filed here in all four suits by the various
defendants but Civil Appeals Nos. 91 and 93 of 1950 were
dismissed for want of prosecution, therefore the decree of
the High Court in the two cases out of which those appeals
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arose will stand. We are now only concerned with Civil
Appeals Nos. 92 and 94 of 1950.
In the lower Courts much of the effort was concentrated on
finding out which items out of a large mass of property
belonged to Nanak Chand and which did not. We do not intend
to look into that because it it is unnecessary on the view
we take. We will therefore assume, without deciding, that
all the properties in dispute were part of Nanak Chand’s
estate.
We will deal first with the family arrangement. The learned
counsel for the plaintiff argued that the defendants never
set up a family arrangement though they have used the words
"family settlement". He contended that what they really
pleaded was a gift out and out by Pato. It was pointed out
that the defendants never suggested a dispute, neither did
they suggest that any one ever questioned or doubted Pato’s
absolute title to the property. Therefore, it was argued,
the present case, which is based on the assumption that the
property was not Pato’s and that she was laying wrongful
claim to it, cannot be allowed because it flies in the face
of the defendants’ pleadings.
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There is not much in this objection. The defendants did
plead a family arrangement and the matter was put in issue
and fought out. The defendants’ case was that all the
property was Pato’s. The plaintiff’s case was that it was
all Nanak Chand’s. The issues were-
"4. Whether Mst. Pato gave properties separately to each of
her three daughters and to daughter’s sons and put them in
proprietary possession and they remained absolute owners of
their properties and what is its effect on the case?
5. Whether the arrangement mentioned in issue No. 4 was by
way of family settlement and what is its effect on the
case?"
These issues are broad enough to cover the present point.
If the properties really belonged to Nanak Chand, as the
plaintiff claims, then the case for a family settlement
becomes all the stronger, for it is clear that Pato laid
claim to them as her own properties of which she could
dispose by will, for that is what the document of 1864
really is. If, on the other hand, they were her properties,
as the defendants say, then she had the right either to gift
them outright or to settle them as the defendants say she
did by way of a family arrangement. In either case, the
matter was fully fought out and neither side was misled.
The real question we have to decide is, has the family
arrangement been proved? We think it has.
The direct evidence on this point is that of Shyam Lal (D.W.
I in C.A. 94/50) and the first defendant there. He tells us
that he had money lending transactions with Har Devi,
Kanhaiya Lal, Shyam Lal and Pyare Lal on unregistered bonds
from 1902 till 1910 and from 1910 on registered mortgage
bonds. He says that-
"They" (that is to say, Har Devi, Mukand Ram, Kanhaiya Lal,
Shyam Lal and Pyare Lal) "showed one copy of a deed of will
and said that Mst. Pato had given the property to her
daughters and grandsons........ I am illiterate and Kanhaiya
Lal brother of Mukand Ram had the deed of will read over to
me at
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the time of mortgaging property in 1909 or 1910. It was by
means of that paper that I came to know that Mst. Pato had
made her daughters and grandsons absolute owners and I know
of the property which was mortgaged to me".
Now it is true that the so-called will of 1864 does not make
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provision for the grandsons, nor does it expressly confer an
absolute estate on the legatees, but the witness is
illiterate and had to depend on what he was told about the
contents and meaning of the document, and what we have to
test is the truth of his assertion that the plaintiff Mukand
Ram and Kanhaiya Lal, and other members of the family, told
him that Mst. Pato had given the property to her daughters
and grandsons. If they told him this, as he says they did,
then it operates as an admission against Mukand Ram and
shifts the burden of proof to him because he was one of the
persons who made the statement. The statements made by the
others are not relevant except in so far as they prove the
conduct of the family.
The plaintiff (P.W. 11 in C.A. 91/50) admits that Mst. Pato
divided the estate but says that it was only for convenience
of management and that neither she nor her daughters had, or
pretended to have, anything more than a life estate. He
denies that there was any gift or family arrangement. But
he had to admit that the grandsons also got properties at
the same time. His explanation is that it was for the
purposes of "shradh" and pilgrimage to Gaya and he says that
though they were given possession they were not the
"owners".
We now have to choose between these two witnesses and see
which is telling the truth. But before doing that we will
advert to another member of the family, Pyare Lal, who was
examined as a witness (D.W. 17) in C.A. 92/50. He admits a
series of sales made by him but says that he had no wilt of
his own and that he did just what Mukand Ram told him.
Now to go back to the year 1864 when Mst. Pato made the so-
called will of 1864. This document was
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construed by the Privy Council in Mast. Hardei v. Bhagwan
Singh(1) and their Lordships said-
"In the events which happened this document did not become
operative, but it is relevant as showing that at the date of
its execution Pato was claiming an absolute right to dispose
of the whole of the scheduled property".
Mukand Ram was not a party to that litigation and the
decision does not bind him but it operates as a judicial
precedent about the construction of that document, a
precedent with which we respectfully agree. She says there
that the property "belongs exclusively to me without the
participation of anyone else". That assertion, coupled with
the fact that she purported to dispose of the property after
her death (which she could not have done as a limited
owner), and taken in conjunction with the subsequent conduct
of the daughters and that of the grandsons, imports
admissions by them that that was her claim and leaves us in
little doubt about what she meant. We therefore reach the
same conclusion as the Judicial Committee and hold that Mst.
Pato claimed an absolute estate in 1864.
We will now examine the conduct of the family after Pato’s
death and the claims put forward by them from time to time.
First, we have the statement of Mukand Ram in the witness
box (P.W. 11 in C.A. 91/50) that on Pato’s death her
daughters took separate possession of the properties in the
following villages and towns:
Har Devi Qutabpur Amawti.
Shakerpore.
Lalpur.
Bagh Alam Sarai.
Houses, Shops, etc. in Bazaar Kot,
Sambhal.
Durga Devi. Keshopur Bhindi.
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Tatarpore Ghosi.
Half Bilalpat.
Qumharwala Bagh.
(1) A.I.R. 1919 P.C. 27.
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Shehzadi Serai.
Houses, shops, etc. in Sherkhan
Serai, Sambhal.
Maha Devi. Guretha.
Behrampur
Half Bilalpat.
Mahmud Khan Serai.
Houses, etc. in Kot.
Grove in Alam Serai
The plaintiff also admits that the grandsons got some
properties but does not give details. All he says is that
they were given properties "for purposes of performance of
’shradh’ and pilgrimage to Gaya".
Next, we have a long series of alienations by different
members of the family with claims to absolute ownership
which could only have sprung from titles derived either from
a gift from Pato or from a family settlement. We say
"family settlement" because we know now that the bulk of the
property (and according to the High Court the whole of it)
was Nanak Chand’s. We also know that some of it was
purchased by Pato after Nanak Chand’s death from the income
of the estate. Pato had the right to purchase properties
for herself if she wanted instead of adding them to her
husband’s estate and we know she claimed title to the whole
as an absolute owner in 1864. This claim may have been due
to a mistaken view of Hindu law that in the absence of sons
the widow gets an absolute estate, or it may have been due
to other reasons, but that she made the claim is clear, and
the subsequent conduct and statements of the family show
that they either admitted the correctness of her claim and
accepted the properties as gifts from her or they agreed to
and acted on a family settlement to avoid disputes on the
basis that each got an absolute title to whatever properties
fell to his or her share at the time of the division.
The grandsons were minors at the time and were not parties
to this arrangement, whatever its origin, and of course the
widow and daughters could not enlarge their limited estates
so as to bind the grandsons
33
however much they agreed among themselves. But for the
moment we are not considering the legal effect of whatever
the arrangement was but whether the conduct of the family
gives rise to an inference that there was an arrangement in
fact.
A family arrangement can, as a matter of law, be implied
from a long course of dealings between the parties: Clifton
v. Cockburn(1) and William v. William(1); and we have such a
course of dealing here. First, there is a long series of
alienations by Har Devi stretching from 1877 down to 1916.
We tabulate them below with the recitals she made about her
title.
17-1-77 Mortgage Qutabpur Amawti "owned by me". Ex. LL-1
(C.A. 94)
11-1-78 do do Owner: "devolved
on me from my Ex. 2J1
mother". (C.A.91)
20-3-81 do do Owner: "right of Ex.2H1
inheritance from (C.A.91)
my father".
7-9-83 Sale. Lalpur Owner: "right of
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inheritance". Ex. 2Gl (C.A. 91)
23-8-87 Mortgage Qutabpur Amawti No recital Ex.L (C. A. 92)
15-7-05 do do Absolute owner
with KanhaiyaEx. BB-1 (C.A. 94)
Laland Mukand
Ram.
19-11-08 do do No recital Ex. M-1 (C.A. 94)
do
14-11-14 do do do Ex. V (C.A. 92)
23-3-15 do do Owner: with Ex.X (C.A. 92)
Mukand Ram
17-2-16 do do With Mukand Ex. N-1 (C.A. 94)
Ram. No recital
28-3-16 do do Owner: with
Mukand Ram
and his son Ex. (G.A. 94)
Ram Gopal
22-1-18 do Behrampur Owner: with Ex.DDD-1(C.A. 91)
Buzurg Mukand Ram
and Bhukan
Saran
23-3-18 do do Owner: with Ex. M 1(C. A. 91)
Mukand Ram
and Pyare Lal
It will be observed that Har Devi sometimes claimed to
be absolute owner by right of inheritance from her father
and at others from her mother in respect of the same
village, but whichever way it was,
(1) [1834] 3 My. & K. 76.
(2) [1866] L.R. 2 Ch. 294.
5
34
the claim to absolute ownership Was consistent throughout.
This could only be referable to a family settlement where
the origin of the property was in doubt but which was
settled by bestowing, or purporting to bestow, an absolute
estate on the daughters.
It will also be noticed that in later years Har Devi joined
with Mukand Ram but still claimed an absolute estate along
with him. This was for the following reason. Soon after
Mukand Ram attained majority, the mother and sons
quarrelled. On 11-2-1890 they referred their dispute to
arbitration, Ex. RR-1 (C.A. 94). Mukand Ram became a major
in 1890 and Kanhaiya Lal in 1884. It appears from their
agreement of 11-2-1890 that Har Deyi claimed an absolute
title while her sons said she was only a limited owner. But
the sons agreed to accept a decision to the effect that she
had an absolute estate in the whole of the property in
dispute between them should the arbitrator so decide. The
properties were--
Qutabpur Amawti,
Shakerpore,
Houses, shops, etc. in Mohalla Kot in Sambhal.
Another significant thing is that in this document both
mother and sons agreed that all of Nanak Chand’s grandsons
then in being were in separate possession and absolutely
entitled to certain other properties which they expressly
agreed were not to form the subject-matter of the
arbitration. Here again, these titles could only be
referable to a family arrangement, for the grandsons could
not have got an absolute estate in any other way; nor could
Har Devi. Mukand Ram tells us as P.W. 11 (C.A. 91) that he
and his brother Kanhaiya Lal got Shakerpore and some shops
in Bazar Kot, Sambhal, as a result of this arbitration, but
does not say what happened to Qutabpur Amawti. But it is
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significant that Har Devi’s dealings with Qutabpur Amawti
after this date were all jointly with Kanhaiya Lal and
Mukand Ram. It may be that the arbitrator awarded it
jointly or they agreed to hold it on that basis. We do not
know. All we know is that they mortgaged it jointly.
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Behrampur fell to Mukand Ram’s share and in the mortgage of
the property in 1918 Har Devi joined with Mukand Ram and
Murari Lal’s son Bhukan Saran in one case and with Pyare Lal
in the other. But except for the last two mortgages of 1918
the conduct of Har Devi and her sons for 39 years from 1877
to 1916 as disclosed in these deeds is only consistent with
the family arrangement which the defendants allege, for on
no other hypothesis could either the mother or the sons have
laid claim to an absolute estate.
We will next turn to Durga Devi. She died in 1888 but
before she died she mortgaged Keshopur Bhindi which had
fallen to her share on 3-3-1887 by Ex. U-1 (C. A. 93) and
claimed to be the owner.
Then there is Maha Devi. The only direct evidence we have
of her conduct is a written statement that she filed in O.S.
177/97, Ex. 2BI (C.A. 91). She asserted there on 5-1-1898
that she had been in proprietary possession and occupation
of her divided share of the property obtained by her from
her mother under a deed of will. The circumstances in which
she made this statement are to be found in the judgment in
that suit, Ex. GI (C.A. 91). The suit was by Har Devi
against her sister and a transferee who claimed title
through the other sister Durga Devi. Har Devi’s allegation
was that Durga Devi had mortgaged Keshopur Bhindi and
Tatarpore Ghosi on 3-3-87. The mortgagee sued on his deed
and obtained a decree for sale. In execution of the decree
he purchased the properties himself Durga Devi died in 1888
and Har Devi claimed that Durga Devi had only a limited
estate and that Maha Devi and herself were entitled -to the
properties by survivorship. Maha Devi refused to support
her sister and took up the position that each sister, or at
any rate that she, Maha Devi, got an absolute estate in the
property that came to her and of which she was placed in
separate possession, from Pato. On 16-12-10 Maha Devi
mortgaged Behrampur Buzurg and claimed that it belonged to
her, being property left to her by her mother in which no
one else had any rights. The deed
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is Ex. BB-1 (C.A. 93). On 2-7-11 she sold Bilalpat and
claimed to be its exclusive proprietor, Ex. R-1 (C.A. 93).
We now come to two statements made by Har Devi and Maha Devi
as witnesses in that suit. Strong exception was taken to
their admissibility because the plaintiff was not a party to
the earlier litigation. It is a moot point whether they
would be admissible under section 32(3) of the Evidence Act,
but we need not decide that because we do not intend to use
them as proof of the truth of the facts stated in them. But
they are, in our view, admissible to show the conduct of
these two ladies. The conduct of the various members of the
family is relevant to show that their actings, viewed as a
whole, suggest the existence of the family arrangement on
which the defendants rely. At this distance of time gaps in
evidence that would otherwise be available have to be filled
in from inferences that would normally have little but
corroborative value. But circumstanced as we are,
inferences from the conduct of the family is all that can
reasonably be expected in proof of an arrangement said to
have been made in 1875. The statements that Har Devi and
Maha Devi made as witnesses are therefore as relevant as
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recitals made by them in deeds and statements made by them
in pleadings. They do not in themselves prove the fact in
issue, namely the family arrangement, because, in the
absence of section 32(3), they are not admissible for that
purpose, but as their conduct is relevant these statements
are admissible as evidence of that conduct.
Maha Devi’s statement is Ex. 2-Al (C.A. 91) and Har Devi’s
Ex. 2-Fl (C.A. 91). Both speak of an arrangement effected
by Pato in her life time and say that they entered into
separate possession of the properties by reason of that
arrangement. Har Devi says in addition that the grandsons
were included in the arrangement and given properties too.
Therefore, we know that this is the title under which each
claimed to hold in O.S. No. 177/97. It is proof of their
assertion of this title at that early date and though it is
no proof of the truth of those assertions it is proof of the
37
fact that the assertions were made and that is all we need
at the moment.
We turn next to the conduct of the grandsons, and first we
will consider the plaintiff Mukand Ram and his brother
Kanhaiya Lal. The plaintiff attained majority in 1890 and
from that date down to 1922 we have a series of assertions
of a title that can only spring from the family arrangement.
First, we have the deed of 11-2-90, Ex. RR-1 (C.A. 94)
which we have already considered in connection with Har
Devi. This is the agreement between his brother and himself
on the one hand and Har Devi on the other to refer their
dispute to arbitration. We have already commented on the
fact that the two brothers asserted an absolute title to
properties that were in their possession and acknowledged
the absolute title of Pyare Lal and Shyam Lal to the
properties of which they were possessed. The only dispute
they were prepared to submit to arbitration was about the
properties in Har Devi’s possession and there, they were
prepared to accept a decision upholding Har Devi’s claim to
an absolute estate.
After this came the following dealings:
20-11-91 Sale Shahzadi Proprietary pos- Ex. 2 K1 (C.A. 91)
Sarai session "devolved
on us by right of
inheritance from
Pato ".
28-7-93 Sale Dugawatr Proprietary pos- Ex. 2 El (C.A. 91)
session "by right
of inheritance".
2-7-96 Mortgage Qutabpur " ancestral and Ex. KK-1(C.A.
Amawti 94)
purchased by
us": Possessed
by us....without
the participation of anybody
else".
30-1-00 Sale Bazar Mah- " Proprietary pos-Ex. U (C.A. 92)
mud Khan session" by "right
Sarai, Sam-of inheritance":
bhal " without the par-
ticipation of anyone else."
15-7-05 MortgageQutabpur Owners:withHarEx.BB-1(C.A.94)
Amawti Devi "without the
participation of
anyone else".
38
Kanhaiya Lal died about this time and thereafter Mukand Ram
continued to make transfers claiming to do so in his own
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right. He made the following along with Har Devi. We have
already analysed them. They were-
19-11-08 Ex.MI (C.A.94)
14-11-14 Ex.V (C.A.92)
23-3- 15 Ex.X(C A.92)
17-2- 16 Ex.N-1(C.A.94)
28-3- 16 EX.MM1(C.A.94)
22-1- 18 Ex-DDD1(C.A.91)
23-3- 18 Ex.M1(C.A.91)
But in addition to these he made the following transfers on
his own:
18-2-16 Sale Lashkarpur Absolute owner. Ex. PP-1 (C.A.
94)
24-4-22 Sale Houses, etc. do Ex. Y (C.A. 92)
in Sambhal
23-11-22 Sale Qutabpur Amawti do Ex. Q (C.A. 92)
Next, we come to Shyam Lal. His alienations were as
follows:
19-6-97 Mortgage. Shops in Sanbhal. Owner.Ex. W-1(C.A. 94)
9-11-07 do House in Sambhal. No recital Ex. TT-1(C.A. 94)
17-9-09 do Bilalpat. do Ex. UU-1 (C. A. 94)
In addition, he made the following transfers jointly with
his brother Pyare Lal:
18-1-06 Mortgage. Bilalpat & shops No recitals. Ex. EEE-1
in Sambhal. (C.A.94)
21-2-10 do Bilalpat & Sabz. do Ex. AA-1(C.A 94)
Pyare Lal also made two transfers on his own-
23-9-18 Sale Bilalpat."Devolved on Ex. 15(C.A. 94)
me"from Nanak Chand
by right of inheritance.
2-1-20 do do do Ex. 18 (C. A. 93)
Lastly, there is Bhukban Saran, who is Maha Devi’s
daughter’s son. He transferred as follows:
26-3-18 SaleHouses, etc.in Absoluteand
Sambhal. exclusive Ex. MM-1 (C.A.92)
owner.
9-1-21 Relinquish- Bilalpat do Ex. DD-1 (C.A. 93)
ment.
These documents disclose a long line of conduct on the part
of the various members of the family and show that from 1877
down to 1922 each dealt with the properties in his or her
possession as absolute
39
owner and set up exclusive proprietary title to the
properties transferred. It is true the source of title was
not consistently stated, sometimes it was said to be Pato
and at others Nanak Chand, but the assertion to a separate,
exclusive and absolute title in each is common all through.
There is only one way in which they could have got these
exclusive titles and that is by a family arrangement, for
whether the property was Nanak Chand’s or whether it was
Pato’s, in neither event could any one of these persons have
obtained an absolute estate on the dates with which we are
concerned: the grandsons, because the reversion had not
opened out; the daughters because, either way, they would
only be limited owners under the Hindu law. But if there
was a family arrangement assented to by the daughters and
later accepted and acted on by the sons when they attained
majority, their claim to separate and independent absolute
titles is understandable. It does not matter whether the
claims were well founded in law because what we are
considering at the moment is not the legal effect of the
arrangement but whether there was one in fact.
Now, in spite of all these dealings, the conduct of Har Devi
and Mukand Ram and Kanhaiya Lal was not always consistent.
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They were greedy and while insisting that they be allowed to
hold on to what they had got, they wanted to snatch more if
and when they could. The ball started rolling in 1890 as
soon as Mukand Ram attained majority. There was the
reference to arbitration in that year to settle their
dispute with their mother Har Devi. But even there, there
was the inconsistency regarding their own properties to
which we have already referred. Mukand Ram’s later
explanation in the witness box that they got those
properties for shradh purposes and for a pilgrimage to Gaya
cannot be believed.
Next, there was the suit by Mukand Ram and Kanhaiya Lal
against their aunt Maha Devi in 1895: S. No. 21/1895, Ex. 31
(C.A. 91). That was occasioned by two sales by Maha Devi on
19-2-83 and 20-5-85. She stoutly maintained that she had an
absolute title.
40
The litigation had a chequered career and ultimately the
suit was dismissed as barred by time.
Next came suit No. 177 of 1897, Ex. GI (C.A. 91), in which
Har Devi sued Maha Devi and a transferee. This time it was
to set aside an alienation by Durga Devi, Durga Devi then
being dead. Har Devi claimed that the property was Nanak
Chand’s and that the daughters were limited owners. But
again Maha Devi stood by the family arrangement and asserted
an absolute title in all the daughters; Ex. 2BI (C.A. 91).
We have seen that Har Devi entered the box and admitted the
arrangement: Ex. 2F-1 (C.A. 91). The suit very naturally
failed, but the result of the litigation is not relevant
because the plaintiff was not a party. What we are
examining is the conduct of Har Devi.
In 1913 Har Devi tried again after Maha Devi’s death, this
time against alienees from Maha Devi. This is the suit that
went up to the Privy Council, Mst. Hardei v. Bhagwan
Singh(1). She failed again’.
Having failed against Maha Devi in the 1897 litigation, Har
Devi next tried her luck against Maha Devi’s grandson
(daughter’s son) Bhukhan Saran, after Maha Devi’s death.
The suit is O.S. 52/14, Ex. 78 (C.A. 94). This time she
succeeded with respect to some items and failed as regards
the rest. But again the result is irrelevant: Exs. 6 and 8
(C. A. 94).
Now what we are examining at the moment is whether Shyam
Lal, D. W. I in CA. 94, is to be believed when he says that
Mukand Ram, among others, told him about the family
arrangement tinder which Pato had divided all her property
between her daughters and their sons. It is evident from
what we have said above that Mukand Ram had been
consistently asserting such a title for 31 years from 1891
to 1922 despite his aberrations in 1890 and 1895. In parti-
cular he did this whenever he wanted to borrow money or to
sell property: and he makes a significant admission in the
witness box as P. W. 11 in C. A. 91 that-
(1) A.I.R. 1919 P.C. 27.
41
"In the mortgage or sale of the property over which Mst.
Har Devi was in possession none of her sisters or sisters’
sons joined. Similarly, in the sale or transfer of the
property that came to Durga Devi, none of her sisters or
other sisters’ sons joined".
He also admits that there was a division and separate
possession from 1876. He says that it was for convenience
of management and says that it was after Pato’s death, but
in view of the mass of evidence that we have just analysed,
we think it far more likely that he told Shyam Lal just what
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Shyam Lal says he did. After all, he was borrowing money
from Shyam Lal on each of these occasions; so there is every
reason to believe that he would have told Shyam Lal what he
had so repeatedly asserted to his other transferees. We
accordingly believe Shyam Lal.
That at once shifts the burden of proof to the plaintiff,
and what is his explanation? First, a division of the
estate for convenience of management (but that does not
explain the long chain of unchallenged transfers bar Har
Devi’s efforts in four cases); and second, that the
grandsons got property absolutely for the purposes of shradh
and pilgrimage: ’an explanation which we disbelieve). We
are therefore left with the plaintiff’s admission to Shyam
Lal and that admission, coupled with the conduct and actings
of the family, firmly establishes the family arrangement.
We accordingly hold that, whether the property belonged to
Pato or to Nanak Chand, Pato claimed an absolute right which
the daughters acknowledged, and in return they and their
sons were given separate and absolute estates in separate
portions of the property immediately.
This arrangement bound the daughters because they were
parties to it and received good consideration. But so far
as the sons are concerned, they were minors at that time and
were not parties to this arrangement, for no one suggests
that they were represented by guardians who entered into it
on their behalf. Therefore, the properties they received
were, so far as they are concerned, gifts pure and simple 6
42
from Pato with the assent of her daughters. It does not
matter whether the properties were Pato’s exclusive
properties or whether they came to her from her husband
because, either way, the title to the properties resided in
her and she was the only person competent to pass it on to
another. If her title was absolute, the sons got absolute
estates. If it was the limited title of a Hindu widow, they
obtained a limited title good during her life, and, as the
daughters consented to the gifts and obtained properties for
themselves as a result of the arrangement that resulted in
these gifts, they would not be permitted to question the
gifts; and the Privy Council so held in Har Devi’s suit
against the alienees from Maha Devi: Mst. Hardei v. Bhagwan
Singh(1). But so far as the grandsons are concerned, the
mere,’ fact that each received a separate gift from Pato at
a time when they were not competent to assent or to dissent
would not in itself bind them. To achieve that result,
there would have to be something more; and it is to that
something more that we will now direct our attention.
But before doing that, we will pause to distinguish Rani
Mewa Kuwar. Rani Hulas Kuwar (2); Khunni Lal v. Gobind
Krishna Narain (3), and Ramsumran Prasad v. Shyam Kumari
(4). It is well settled that a compromise or family
arrangement is based on the assumption that there is an
antecedent title of some sort in the parties and the
agreement acknowledges and defines what that title is, each
party relinquishing all claims to property other than that
falling to his share and recognising the right of the
others, as they had previously asserted it, to the portions
allotted to them respectively. That explains why no con-
veyance is required in these cases to pass the title from
the one in whom it resides to the person receiving it under
the family arrangement. It is assumed that the title
claimed by the person receiving the property under the
arrangement had always resided in him or her so far as the
property falling to his or her share is concerned and
therefore no conveyance is
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(1) A.I.R. 1919 P.C. 27.
(2) [1874] 1 I.A. 157, 166.
(3) [1911] 38 I A. 87, 102.
(4) [1922] 19 I. A. 342, 348.
43
necessary But, in our opinion, the principle can be carried
further and so strongly do the Courts lean in favour of
family arrangements that bring about harmony in a family and
do justice to its various members and avoid, in
anticipation, future disputes which might ruin them all,
that we have no hesitation in taking the next step (fraud
apart) and upholding an arrangement under which one set of
members abandons all claim to all title and interest in all
the properties in dispute and acknowledges that the sole and
absolute title to all the properties resides in only one of
their number (provided he or she had claimed the whole and
made such an assertion of title) and are content to take
such properties as are assigned to their shares as gifts
pure and simple from him or her, or as a conveyance for
consideration when consideration is present.
The regal position in such a case would be this. The
arrangement or compromise would set out and define that the
title claimed by A to all the properties in dispute was his
absolute title as claimed and asserted by him and that it
had always resided in him. Next, it would effect a transfer
by A to B, C and D (the other members to the arrangement) of
properties X, Y and Z; and thereafter B, C and D would hold
their respective titles under the title derived from A. But
in that event, the formalities of law about the passing of
title by transfer would have to be observed, and now either
registration or twelve years adverse possession would be
necessary. But in the present case, we are dealing with an
arrangement made in 1875 at a time when the Transfer of
Property Act was not in force and no writing was required;
an d, as there is no writing, the Registration Act does not
apply either. Therefore, the oral arrangement of 1875 would
be sufficient to pass title in this way and that, in our
opinion, is what happened.
But these rules only apply to the parties to the settlement
and to those who claim through or under them. They cannot
be applied to the minor sons who were not parties either
personally or through their guardians and who do not claim
title’ either through
44
Pato or her daughters. So far as they are concerned, what
they received were gifts pure and simple and the only assent
that could be inferred from mere acceptance of the gift and
nothing more would be assent to that particular gift and not
assent to the gifts similarly made to others; and for this
reason.
When Mukand Ram attained majority he had two titles to
choose from. One from Pato as a limited owner coupled with
the assent of the daughters to her gift to him. In that
case, he would hold a limited estate till the reversion
opened out. The gift would be good during Pato’s life time
because she had that title to convey, and thereafter, till
the three daughters died, because they assented to it and
obtained considerable benefit for themselves from the
transaction out of which it arose. The other title would be
an absolute one on the basis that Pato was the absolute
owner of the properties. That title could only be referable
to the family arrangement, and if Mukand Ram, knowing the
facts, assented to the arrangement ex post facto, he will be
precluded from challenging it for reasons which we shall now
explain.
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If the properties were Nanak Chand’s, which is the
assumption on which we are deciding this case, then Pato was
a limited owner under the Hindu law, but as such she
represented the estate and any title she conveyed, whether
by gift or otherwise, would not be void; it would only be
voidable. It would be good as against all the world except
the reversioner who succeeded when the reversion opened out
and he is the only person who would have the right to avoid
it; and it would continue to be good until he chose to avoid
it. Therefore, if he does not avoid it, or is precluded from
doing so, either because of the law of limitation or by his
own conduct, or for any other reason, then no one else can
challenge it; and the law is that once a reversioner has
given his assent to an alienation, whether at the time, or
as a part of the transaction, or later as a distinct and
separate act, he is bound though others may not be, and
having given his assent he cannot go back on it to the
detriment of other persons; all the more so when he himself
receives
45
benefit:see Raja Modhu Sudan Singh v. Rooke(1); Bijoy Gopal
v. Krishna(1), and Ramgouda Annagouda v. Bhausaheb(3). Lord
Sinha, delivering the judgment of the Privy Council in the
last of these three cases, said at page 402:-
"It is settled law that an alienation by a widow in excess
of her powers is not altogether void but only voidable by
the reversioners, who may either singly or as a body be
precluded from exercising their right to avoid it either by
express ratification or by acts which treat it as valid or
binding".
This was followed in Dhiyan Singh v. Jugal Kishore(4) though
the ground of that decision was estoppel. We are now
founding on another principle which is not grounded on
estoppel and which, indeed, is not peculiar to Hindu law.
Estoppel is rule of evidence which prevents a party from
alleging and proving the truth. Here the plaintiff is not
shut out from asserting anything. We are assuming in his
favour that Pato had only a life estate and we are examining
at length his assertion that he did not assent to the family
arrangement. The principle we are applying is therefore not
estoppel. It is a rule underlying many branches of the law
which precludes a person who’ with full knowledge of his
rights, has once elected to assent to a transaction voidable
at his instance and has thus elected not to exercise his
right to avoid it, from going back on that and avoiding it
at a later stage. Having made his election he is bound by
it.
So far as the Hindu law is concerned, Lord Dunedin explained
in Rangaswami Gounden v. Nachiappa Gounden(5), a case in
which a widow gifted properties to her nephew, that though
the reversioner is not called upon to exercise his right to
avoid until the reversion falls in and so no assent can be
inferred from mere inaction prior to the death or deaths of
the limited owner or owners, he is not bound to wait and
"of course something might be done even before
(1) [1897] 24 I.A. 164, 169. (2) [1906] 34 I.A. 87.
(3) [1927] 54 I.A. 396. (4) 1952 S.C.R. 478, 488.
(5) [1918] 46 I.A. 72, 86,87.
46
that time which amounted to an actual election to hold the
deed good".
Ramgouda case(1) is an illustration of what that something
can be, for there the assent was given by the ultimate
reversioner before he became in titulo to alienations by a
widow, one of which was a gift. The present case is another
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illustration. For the reasons we have given and which we
shall now further examine, we hold that the plaintiff, who
is in titulo now that the succession has opened out,
unequivocally assented to the arrangement with full
knowledge of the facts and accepted benefit under it,
therefore, be is now precluded from avoiding it, and any
attempts he made to go behind that assent when it suited his
purpose cannot render the assent once given nugatory even
though it was given when he was not in titulo and even
though the assent was to a series of gifts.
The real question is whether the plaintiff assented to the
family arrangement, and as the plaintiff was not a party to
the arrangement his assent to the arrangement itself, and
not to something else, must be clearly established, and also
his knowledge of the facts. But we think they have been.
In the first place, there was the express assent in 1890 to
the gifts made to the other grandsons on the basis that each
grandson got an absolute estate. Next, there was the long
course of dealings by Kanhaiya Lal and Mukand Ram in which
they asserted absolute titles. Mukand Ram tells us in the
witness box as P.W. 11 (C.A. 91) that Kanhaiya Lal was the
karta of the joint family to which Mukand Ram belonged,
therefore Kanhaiya Lal’s dealings with the properties which
he and his brother held under a joint and undivided title
are also relevant as they will bind Mukand Ram. And lastly,
there is Mukand Ram’s representation to Shyam Lal (D.W. I in
C.A. 94) which leaves us in no doubt about his knowledge.
The cumulative effect of this course of conduct leads to a
reasonable inference that Kanhaiya Lal and Mukand Ram were
holding, not on the basis of a separate and individual gift
made by a life owner with the assent of the next set of life
1) [1927] 51 I.A. 396, 402.
47
owners, but on the basis of the family arrangement which was
one composite whole in which the several dispositions formed
parts of the same transaction under which Mukand Ram himself
acquired a part of the estate: see Ramgouda v. Bhausaheb(1).
We are therefore satisfied that the plaintiff’s assent was
to this very arrangement. and that concludes both cases.
In C. A. 94/50 there is, in addition, a direct personal
estoppel against the plaintiff. The transfers that are
challenged there are sales of 23-9-18 and 25-11-19 made by
two of the grandsons, one personally and the other by the
guardian, but the relevant dates for the purposes of the
estoppel are later because the representation in this case
was not made to the immediate transferees but to the first
defendant who obtained title to the properties at a later
date, in one case by a sale from the immediate transferee,
in the other by pre-emption. But the exact dates do not
matter because the representation to the first defendant was
made in 1910 before the first defendant’s purchases. It was
made by Kanhaiya Lal and Mukand Ram as as well as by other
members of the family. We have already referred to the
first defendant’s evidence. This case would therefore be
governed by Dhiyan Singh v. Jugal Kishore(2) in any event.
But we need not elaborate this further because of the other
principle which, in our opinion, is sufficient to dispose of
both the present cases.
The result is that both appeals are allowed. The decrees of
the High Court -are set aside and those of the first Court
dismissing the plaintiff’s claims in those suits out of
which Civil Appeals 92 and 94 of 1950 arise are restored.
Costs here and in the High. Court will be paid by the
plaintiff-respondent but there will be only one set of costs
and they will be divided half and half between the two sets
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of appellants.
Appeals allowed.
(1) [1927] 54 I.A. 396, 402.
(2) 1952 S.C.R. 478.
48