Full Judgment Text
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PETITIONER:
MUSAMMAT PHOOL KUER
Vs.
RESPONDENT:
MUSAMMAT PEM KUER AND ANOTHER.PANDIT MADAN MOHANv.MUSAMMAT P
DATE OF JUDGMENT:
24/04/1952
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
BOSE, VIVIAN
CITATION:
1952 AIR 207 1952 SCR 793
CITATOR INFO :
R 1960 SC1118 (17)
ACT:
Hindu law--Widow--Surrender to next reversioner and
stranger--Validity--Compromise by widow--When binding on
reversioner.
(1) (19I8) 27 C.L.J. 532.
794
HEADNOTE:
A relinquishment by a Hindu widow of her estate in
favour of the next reversioner and a stranger in equal
moieties is not a valid surrender under Hindu law. A valid
surrender cannot be made in favour of anybody except the
next heir of the husband.
Mummareddi Nagireddi v. Pitti Durairaja Naidu [1951]
(S.C.R. 655) followed.
It is competent to a Hindu widow to enter into a compro-
mise in the course of the suit bona fide in the interest of
the estate and not for her personal advantage and a decree
passed on such a compromise will be binding on the rever-
sioner. The question whether a compromise is a bona fide
settlement of a disputed right between the parties depends
on the substance of the transaction and in order that it may
bind the estate it should be a prudent and reasonable act.
[On the facts their Lordships held, agreeing with the High
Court, that, the compromise in the present case was neither
prudent nor reasonable so far as it affected the interests
of the estate and of the ultimate reversioners and that it
was not, therefore, binding on the reversioners.]
Ramsumaran Prasad v. Shyam Kumari (49 I.A. 342),
Mohendra Nath Biswas v. Shamsunnessa Khatun (21 C.L.J. 157)
and Imrit Kunwar v. Roop Narain Singh (6 C.L.R. 76) fol-
lowed. Mata Prasad v. Nageshar Sahai (52 I.A. 393) distin-
guished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 29 and
30 of 1951. Appeals from the judgment and decree dated 26th
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October, 1943, of the High Court of Judicature at Allahabad
(Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising
out of the judgment and decree dated 6th August, 1937, of
the Court of the Additional Civil Judge at Agra in Suit No.
30 of 1936.
M.C. Setalvad and Kirpa Ram (K. B. Asthana, with them)
for the appellant in Civil Appeal No. 29 of 1951.
K.N. Agarwal for the appellant in Civil Appeal
No. 30 of 1951.
C.K. Daphtary (G. C. Mathur, with him) for the respond-
ents in both the appeals.
1952. April 24. The Judgment of the Court was deliv-
ered by MAHAJAN J.
796
Mst. Khem Kuer, the young widow of Shah Chiranji Lal,
was murdered on the 28th August, 1919, and Mst. Mohan Kuer,
the mother, died on the 5th December, 1932. Mst. Prem Kuer,
the respondent in the appeal, claiming herself to be the
heir to Shah Chiranji Lal as his sister, brought the suit
giving rise to this appeal in the court of the civil judge,
Agra, against, amongst others, Mst. Phool Kuer, the present
appellant, for recovery of possession of the properties of
Shah Chiranji Lal and mesne profits.
Mst. Prem Kuer joined her half-sister Mst. Ram Kuer and
their sons as plaintiffs along with herself. In the array of
defendants were impleaded Mst. Phool Kuer and Mst. Khem
Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his
sons and a host of others as transferees of the properties.
The main defence to the suit was that Shah Jwala Prasad
and Shah Madho Lal were recognized to be the owners and
heirs to the entire estate of Shah Chiranji Lal by Khem Kuer
and Mohan Kuer in a family settlement arrived at between the
parties in suit No. 120 of 1915, that by virtue of this
family settlement the estate of the deceased was vested in
them subject to the life estates of the two women and that
the plaintiffs who came to be recognized as reversioners by
the Hindu Law of Inheritance (Amendment) Act, 11 of 1929,
were not entitled to claim it. It was further pleaded that
on the death of Khem Kuer in 1919, Mohan Kuer surrendered
the estate in favour of Jwala Prasad and Madho Lal and they
took possession of it as owners and the plaintiffs who
subsequently became statutory heirs in 1919 could not be
allowed to question the surrender and reopen the succession
which could not remain in abeyance.
The learned additional civil judge who tried the suit,
dismissed it holding that the compromise of 1915 was a bona
fide settlement of a bona fide dispute and was binding as a
family settlement being for the benefit of the estate, that
Mohan Kuer surrendered the estate validly in favour of Jwala
Prasad and Madho
795
MAHAJAN J.--The dispute in this appeal concerns the
zemindari and house properties last owned by Shah Chiranji
Lal who died at a young age on the 14th May, 1913, leaving
him surviving a widow, Mst. Khem Kuer, and his mother Mst.
Mohan Kuer, besides a number of collaterals, indicated in
the pedigree table below :--
Shah Pirthi Raj
:
:
-------------------------------------------------------------
: : :
: : :
Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan Kuer : :
: : : :
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: : : :
: : Hira Lal :
: : : :
: : : Shah Jai
: : : Kisen
: : :
Mst. Ram Kuer :-------------------
=Kherpal : : :
: : : :
: :Shah Jwala Shah Sri
--------------------------------- :Prasad Kisen
: : : :(1)Khem :
: : : : Kuer Shah Madho
Ram Chand Lachman Kishen Lal :(2)Phool Lal
Prasad =Mst. Umri : Kuer :
: : ---------------
: : : :
: : Sudar- Mad-
: Dwarka shan sudan
: Prasad Lal Lal
----------------------------------------------------------
: : : :
: : : :
: : : :
Ganga Prasad Jamna Mst. Prem Kuer Shah Chiranji Lal
Prasad =Lekh Raj =Mst. Khem Kuer
:
:
------------------------
: :
: :
Manohar Lal Lachmi Narain
797
Lal and they entered into possession of it after the death
of Khem Kuer. Some of the transferees who had been implead-
ed as defendants compromised the suit with the plaintiffs
and that part of the suit was decided according to the terms
thereof between those parties.
Mst. Prem Kuer preferred an appeal to the High Court of
Judicature at Allahabad against the decree dismissing her
suit. The High Court by its judgment dated the 26th Octo-
ber, 1943, allowed the appeal, reversed the findings of the
learned additional civil judge on the above issues and
decreed the plaintiffs’ suit with costs. Some of the trans-
feree-defendants compromised with the plaintiff-appellant in
the High Court and the appeal was decided in terms thereof
in their favour.
Two main points which are in controversy in this appeal and
require consideration, are:--
1. Whether the compromise in suit No. 120 of 1915
amounts to a family settlement and binds the plaintiff-
respondent, and,
2. Whether the surrender by Mst. Mohan Kuer was a valid
surrender under Hindu law.
In order to appreciate the respective contentions of the
parties, it is necessary to set out shortly in chronological
order the history of the events which has resulted in this
controversy.
As already stated, Shah Chiranji Lal died on the 14th
May, 1913, leaving considerable movable and immovable
property. At the time of his death, his widow Khem Kuer was
about eleven years old and his mother Mohan Kuer was about
53 years old. The two reversioners, Shah Jwala Prasad and
Shah Madho Lal, made an application for mutation of names of
the estate in their favour claiming it on the basis of a
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will alleged to have been made by Shah Chiranji Lal on the
13th May, 1913, a day before his death. On the 10th of
September, 1913, an application was made by Mohan Kuer for
herself and as guardian of Khem Kuer Challenging the genu-
ineness of the will and claiming
798
that the estate of the late Shah Chiranji Lal should be
mutated in their names. Notice of this application was given
to the two reversioners but they thought it prudent not to
appear and to contest the contentions raised by the two
ladies. with the result that the inheritance of the late
Chiranji Lal was mutated in the name of the widow as sole
heir under the guardianship of Mohan Kuer by an order dated
the 28th October, 1913. The reversioners had also made
applications in pending suits for getting themselves im-
pleaded as legal representatives. Mohan Kuer applied for the
removal of their names and for substitution of the name of
the widow and of herself in those cases. Pending decision
of these matters, on the 11th May, 1915, suit No. 120 of
1915 was filed by Jwala Prasad and Madho Lal on the basis of
the alleged will of the 13th May, 1913. On the same day an
application was made for the appointment of a receiver and
an interim order appointing a receiver was passed by the
court. On the 18th May, 1915, Mohan Kuer for herself and as
guardian of the minor widow made an application praying for
the discharge of the receiver. By an order dated the 23rd
September, 1915, the receiver was discharged and it was held
by the civil judge that the plaintiffs had no prima facie
case and that the will propounded by them was a suspicious
document. On the 18th December, 1915, suit No. 120 of 1915
was compromised between the parties. This compromise is in
the following terms :--
"1. The plaintiffs relinquish their claim for possession
over the estate of Shah Chiranji Lal.
2. The defendants shall have all those rights to the
estate of Shah Chiranji Lal, which she had as a Hindu widow
according to law. After the death of the two Musammats, the
plaintiffs in equal shares and, after them, their heirs, who
might have the right of survivorship one after the other,
shall be the owners of the estate of Shah Chiranji Lal.
3. The name of Mst. Mohan Kunwar defendant against one
half of the property in lieu of maintenance, shall continue.
799
4. Mst. Mohan Kunwar and Mst. Khem Kunwar shall have
power to do anything they might choose with the entire
income from the movable and immovable property, cash, orna-
ments, amount of decrees and documents, household goods and
other movables, which they might have in their possession.
The plaintiffs or anyone else shall have no power to inter-
fere or to ask for rendition of accounts.
5. In case Mohan Kunwar defendant dies first, Mst. Khem
Kunwar shall, as a Hindu widow, become the owner in posses-
sion of the entire property, of which Mst, Mohan Kuer might
have been in possession in any way, subject to the provi-
sions of condition No. 4. In ,case Mst. Khem Kuer defendant
dies first, Mst, Mohan Kuer shall as a Hindu widow, become
the owner in possession of the entire property of which.
Mst, Khem Kuer might have been in possession in any way,
subject to the provisions of condition No. 4."
In accordance with the terms of this compromise suit No.
120 of 1915 was dismissed. In the proceedings that were
pending for substitution of names the court on the 22nd
December, 1915, ordered that Khem Kuer and Mohan Kuer be
impleaded as legal representatives of the late Shah Chiranji
Lal.
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On the 2nd September, 1918, Khem Kuer brought a suit
against her mother-in-law Mohan Kuer for a declaration to
the effect that she alone was the lawful heir of Chiranji
Lal and was the owner of the property, mentioned in schedule
A and that the defendant had no concern with it. This suit
was compromised between the parties on the 22nd April, 1919.
Mohan Kuer agreed that Khem Kuer’s suit be decreed. Khem
Kuer undertook to look after Mohan Kuer in every way and if
she desired to live separately from her, she agreed to pay
her a sum of Rs. 3000 per annum by way of maintenance.
Khem Kuer did not live long after her having become
owner of the entire estate of her husband under the terms of
this compromise. As stated already, she was murdered on the
28th August, 1919. The estate
104
800
thus became vested in Mohan Kuer both according to Hindu law
as well as in accordance with the terms of the compromise of
the 18th December, 1915. It is alleged that either on the
fourth or the thirteenth day after the death of Khem Kuer,
Mohan Kuer when asked about the mutation of the estate, said
that she had no concern with it and had relinquished it and
had devoted herself to worship. On the 15th September,
1919, an application bearing the signature of Mohan Kuer in
Hindi was presented by her mukhtar Chaturbhuj in the court
of the subordinate judge at Agra, praying that the sale
certificate in suit No. 1919 (Shah Jwala Prasad v. Rai
Bahadur Shah Durga Prasad), be prepared in the names of Shah
Jwala Prasad and Shah Madho Lal, for they were the heirs in
possession of the properties of Shah Chiranji Lal. This
application (Exhibit N-31) contains the following recital:--
"Mst. Khem Kuer died on the 28th of August, 1919. I do
not want to take any proceedings in my own name. Shah Jwala
Prasad and Shah Madho Lal are the subsequent heirs and it is
in their names that all the mutation proceedings etc. are
being taken in the revenue court. They have been made the
heirs in possession of the entire property and an applica-
tion has been filed in their names in this court for prepara
tion of the sale certificate. This petitioner has got no
objection to the preparation of the sale certificate in
their names, for they are the heirs and are in possession of
the property."
The sale certificate was prepared accordingly. On the
16th September, 1919, Jwala Prasad and Madho Lal applied for
mutation in respect of the lands relating to mauza Somra in
the court of the tahsildar of Etmadpur. In column 5 of this
application (Exhibit A-14) it was alleged that they were
entitled to mutation by right of inheritance. Similar appli-
cations were made in respect of other villages also. (Vide
Exhibit 128 etc.) Mutations were entered in all the villages
on the basis that both of them were heirs in equal shares to
the property of the deceased, though according to Hindu law,
Shah Jwala Prasad alone was the
801
next heir. During the course of the mutation proceedings one
Chintaman, general attorney of Shah Jwala Prasad was exam-
ined on the 11th October, 1919 and he stated that Mst. Khem
Kuer died on the 28th August, 1919, that Shah Jwala Prasad
and Shah Madho Lal were her heirs in equal shares, that
Mohan Kuer was the mother-in-law of the deceased and she did
not want her name to be recorded and had made relinquishment
in favour of Shah Madho Lal and Shah Jwala Prasad in the
civil court on the 15th September, 1919. Chaturbhuj, gener-
al attorney of Mohan Kuer was examined in the same proceed-
ings on the 27th October, 1919, and he stated that Mohan
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Kuer did not want her name to be recorded in place of the
name of the deceased, that she had no objection to the entry
of the names of Shah Jwala Prasad and Shah Madho Lal, that
she had sent him for making that statement. He admitted the
relinquishment filed by Mohan Kuer in the civil court with
respect to the property of Mst. Khem Kuer but he was not
able to state when that relinquishment had taken place. The
tahsildar after recording these statements ordered the
mutation of
names in favour of the two reversioners (Exhibit
M-2).
On the 22nd November, 1919, the two reversioners Shah
Jwala Prasad and Shah Madho Lal, having entered into
possession of the estate after the death of Khem Kuer made a
gift of property of the value of about Rs. 50,000 in favour
of the sisters of Shah Chiranji Lal by means of two deeds of
gift. (Vide Exhibit M-16). These gift deeds contain the
following recitals :-
"Shah Chiranji Lal deceased was the owner of Katariha
estate in which besides other villages the villages speci-
fied below were also included, and as he had no issue after
his death Mst. Khem Kuer became his heir as a Hindu widow of
a joint family subject to Mitakshara school of law. On her
death we the executants who were entitled to become the
absolute owners of the estate of Shah Chiranji Lal according
to Shastras became the absolute owner of the entire property
802
of Shah Chiranji Lal by inheriting the estate from him. We
obtained possession over everything and mutation of names
also were effected in our favour from the revenue court in
respect of all villages. Shah Chiranji Lal deceased had two
sisters Mst. Ram Kuer and Mst. Prem Kuer and he had a desire
during his lifetime to give them some property but owing to
sudden death he could not himself fulfil his intention
during his lifetime. We the executants accept this fact as
desired by him. Besides this the mother of Shah Chiranji
Lal also desires the same thing and it is our duty to fulfil
the same, and to give property to the Musammats aforesaid is
considered to be a pious and good act from the religious
point of view. It is our duty also to respect their wishes
and fulfil the same, so that the people of our caste and
family might not think that after the death of Shah Chiranji
Lal his wishes remained unfulfilled. Hence for the reasons
set forth above and keeping in view the honour of the family
and pious nature of the act we the executants while in a
sound state of body and mind ............... make a gift of
the following villages in favour of the donees."
The donees subsequently made a number of transfers of
the property gifted to them and in every respect the gift
deeds were acted upon. Jwala Prasad, the presumptive rever-
sioner, died in the year 1980.
In suit No. 49 of 1928 (same as No. 89 of 1929) one
Pandit Rikh Ram had obtained a decree against Shah Madho Lal
and his sons and they appealed against it to the High Court
and also applied for postponement of the preparation of the
final decree. Stay was ordered on the applicants furnishing
security in the sum of Rs. 20,000 for future interest,
costs, etc. On the 26th May, 1930, in compliance with the
order of the High Court a security bond was executed by Shah
Madho Lal and his sons as first party and by Mst. Mohan Kuer
as second party, containing the following recitals :--
"After the death of Mst. Khem Kuer Mst. Mohan Kuer was
to become the owner of the property with
803
limited interests as a Hindu mother, but she relinquished
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her inheritance and did not agree to accept any property.
By means of a private arrangement, i.e., a family arrange-
ment, it was decided as between Shah Jwala Prasad and Shah
Madho Lal that they should be the owners of the property
aforesaid in equal shares. Documents in that connection
were registered. Thus Shah Madho Lal executant No.1 is the
exclusive owner of the property given below which is being
pledged and hypothecated under this security bond. Execu-
tant No. 4, the second party, has, after hearing and under-
standing the contents of this security bond, joined in token
of the veracity of the facts noted above so that in future
she might not be able to take objection to it and so that
she might have no objection of any sort to the security
bond." (Executant No. 4 was Mst. Mohan Kuer).
On the 30th June, 1930, an affidavit bearing the thumb
impression of Mst. Mohan Kuer was filed in the same pro-
ceedings containing the following statements :---
"I solemnly affirm and say that after the death of Mst.
Khem Kuer I did not agree to accept property nor was I the
heir and that I relinquished the entire property in favour
of Shah Jwala Prasad who became the owner of the entire
property which was in possession of Khem Kuer."
The Subordinate Judge expressed the view that the bond
could not be held to have been executed by Mohan Kuer, she
being a pardanashin lady. He declined to accept the deed as
sufficient and valid security. On the 9th July, 1930, the
High Court of Judicature at Allahabad dismissed the applica-
tion for stay of proceedings.
On the 15th July, 1931, Mohan Kuer instituted suit No.
24 of 1931 in the court of the subordinate judge of Mathura
against the widows of Shah Jwala Prasad, Shah Madho Lal and
his sons and a number of transferees who had taken the
property from these two reversioners. In para 8 of the
plaint it was alleged
804
that the plaintiff was an old pardanashin woman, was simple
and of week intellect and illiterate, that on account of the
murder of Mst. Khem Kuer, she was very terror-stricken and
was full of sorrow and had no knowledge about her rights,
that the third defendant and Jwala Prasad who wanted to get
the property took undue advantage of the plaintiff’s afore-
said condition and unlawfully entered into possession of the
property left by Chiranji Lal deceased and caused the muta-
tion of names in their favour. In para. 12 it was said that
the defendants had got the thumb impressions of the plain-
tiff on certain documents without telling her the contents
of those papers, simply by saying that a decree for a con-
siderable amount had been passed against the property and it
was going to be sold in auction and that a security bond
must be furnished for saving the property. She prayed for a
decree for possession of the property in dispute in her
favour against the defendants. During the pendency of this
suit Mohan Kuer died on the 5th December, and on her death
an attempt was made by the present plaintiffs to get them-
selves impleaded as her legal representatives but on the 9th
October 1934 it was held that the claim of Mst. Mohan Kuer
was of a personal character and the suit therefore could not
proceed owing to abatement. It was, however, noted that the
legal representatives could file a separate suit, if so
advised. It is in consequence of this order that the suit
out of which this appeal arises was filed on the 30th April
1936.
It was contended by the learned Attorney-General that
the High Court on mere suspicions and unwarranted assump-
tions had found the main issues in the case against the
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appellant and had erroneously held that the compromise in
suit No. 120 of 1915 was not binding on the ’plaintiffs and
that the surrender by Mohan Kuer was not valid surrender
under Hindu law. After hearing the learned counsel at
considerable length, we did not think it necessary to hear
the respondent in reply, as in our opinion, the decision of
the High Court on both the points was right.
805
On the point of surrender, the learned Attorney General
contended that the widow effaced herself and put both the
reversioners in possession of the property half and half,
and agreed to take Rs. 3,000 from them for her maintenance
and that the fact of surrender was satisfactorily proved
from the conduct of Mohan Kuer in allowing the estate to be
mutated in the names of the reversioners and in allowing
them to take possession of it, also by the different state-
ments made by her and from the other documentary and oral
evidence led in the case. Emphasis was laid on the state-
ments contained in the application (Exhibit M-31), on the
statement of her mukhtar Chaturbhuj, and on the recitals of
the security bond and the affidavit, Exhibit P-30.
Whether Mohan Kuer effaced herself and surrendered the
property, or whether she merely abandoned it, or whether she
entered into an arrangement for the division of the estate
between herself, the two reversioners and the daughters
and their sons it is not possible to predicate with any
amount of certainty. No definite opinion can be offered on
the question whether whatever she did, she did voluntarily
after fully realizing the consequences of her act and wheth-
er as a pardanashin lady she had.been properly advised on
the matter or whether she merely acted on sentiment.
Considerable doubt is cast on the story of surrender set
up by the defendants by the recitals in the two deeds of
gift, dated 22nd November, 1919, extracted above. The
donors did not base their title to the property either on
the compromise of 1915 or on the surrender of Mohan Kuer of
the year 1919 or on the will; on the other hand, they said
that they had become owners of the property of Chiranji Lal
by inheritance under Hindu law after the death of his widow.
Both of them could not possibly inherit the property half
and half under Hindu law. Moreover, there is no clear or
definite evidence of either the time when the arrangement
was made or of the terms thereof. The evidence on these
points is vague and
806
unsatisfactory. It is completely wanting as to the arrange-
ment under which Mohan Kuer became entitled to receive
Rs. 3,000 from them.
The conduct of Mohan Kuer and the various statements by
her no doubt do indicate that she cut off her connection
with the bulk of the estate of Chiranji Lal after the death
of the widow and received a sum of Rs. 3,000 from the rever-
sioners and it is also clear that at her instance the rever-
sioners gave property of the value of Rs. 50,000 to her
daughters, but in the absence of any satisfactory evidence
as to the precise nature of this arrangement it is not
possible to conclude that the widow after fully realizing as
to what she was doing and after proper advice effaced her-
self. In this connection the allegations made by her in the
suit of 1931 cannot be altogether ruled out from considera-
tion.
Assuming however for the sake of argument that Mobart
Kuer purported to relinquish her estate in favour of Jwala
Prasad and Madho Lal, in our opinion, the relinquishment
connot in law operate as an extinction of her title in the
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estate. The principle underlying the doctrine of surrender
is that it cannot possibly be made in favour of anybody
except the next heir of the husband. Vesting of the estate
in the next reversioner takes place under operation of law
and it is not possible for the widow to say that she is
withdrawing herself from the husband’s estate in order that
it may vest in somebody other than the next heir of the
husband. It was held by this court in Mummareddi Nagi
Reddi v. Pitti Durairaja Naidu(1) that so far as the next
heir is concerned, there cannot be a surrender of the total-
ity of the interest which the widow had, if she actually
directs that a portion of it should be held or enjoyed by
somebody else other than the husband’s heirs and that the
position is not materially altered if the surrender is made
in favour of the next heir with whom a stranger is associat-
ed and the widow purports to. relinquish the estate in order
that it may vest in
(1) [1951] s.c.R. 655.
807
both of them. Though in the written statements of the two
sets of defendants different versions of the character of
the arrangement were pleaded, the learned Attorney-General
before us stated that the surrender by the widow was made
both in favour of Jwala Prasad and Madho Lal in equal moie-
ties. Madho Lal admittedly was not the next reversioner
entitled to succeed to the estate. Thus the surrender of
the totality of the interest of the widow was not made in
favour of the next heir. That being so, it cannot operate
as a valid surrender. If the surrender could be held a
valid one, then obviously succession that had opened out in
1919 and vested in the next heirs could not be divested at
the instance of the plaintiffs in the year 1932 on the death
of Mohan Kuer, but in view of the invalidity of the surren-
der it has to be held that succession to Shah Chiranji Lal’s
estate opened in 1932 and the plaintiffs as next heirs were
entitled to take it.
The next question for consideration is whether the
compromise of 1915 entered into between Mohan Kuer as
guardian of Khem Kuer, and the two reversioners who had
claimed the estate on the basis of a will, was a bona fide
family arrangement and thus binding on the ultimate rever-
sioners, the plaintiffs. It is well settled that when the
estate of a deceased Hindu vests in a female heir, a decree
fairly and properly obtained against her in regard to the
estate is in the absence of fraud or collusion binding on
the reversionary heir, but the decree against the female
holder must have involved the decision of a question of
title and not merely a question of the widow’s possession
during her life (vide Venayeck Anundrow v. Luxumeebaee (1).
This principle of res judicata is not limited to decrees in
suits contested and it is competent to a widow to enter into
a compromise in the course of a suit bona fide in the inter-
est of the estate, and not for’ her personal advantage, and
a decree passed on such compromise is binding upon the
reversioner. The question whether the transaction
(1) (1861-1863) 9 M.I.A. 520.
808
is a bona fide settlement of a disputed right between the
parties depends on the substance of the transaction and in
order that it may bind the estate it should be a prudent
and reasonable act in the circumstances of the case. As
observed by their Lordships of the Privy Council in Ram-
sumran Prasad v. Shyam Kumari (1), the true doctrine is
laid down in Mohendra Nath Biswas v. Shamsunnessa Khatun(2),
decided in 1914, and it is that a compromise made bona fide
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for the benefit of the estate and not for the personal
advantage of a limited owner will bind the reversioner quite
as much as a decree against her after contest.
That being so,we proceed to inquire whether the compromise
in the present case is one that can be supported on these
principles. In agreement with the High Court we are of the
opinion that it cannot be so supported. Mohan Kuer in
entering into the compromise on behalf of the minor widow
never applied her mind to the interests of the ultimate
reversioners. She entered into it for her own personal
benefit and for the personal benefit of the minor widow in
complete indifference as to what was to happen to the estate
after their respective deaths. Under this compromise these
two ladies got all the rights they had under Hindu law
without sacrificing an iota of their property and then they
agreed that after their death the plaintiffs in equal shares
and after them their heirs shall be the owners of the estate
of Chiranji Lal. It did not matter in the least to the two
ladies what was to happen to the estate after their deaths
and they were quite willing to let this estate go to the
plaintiffs in the suit, though one of them was a remote
reversioner. The compromise therefore was made in the
interest of the actual parties to the suit in complete
disregard of the interests of the ultimate reversioners.
The widows undoubtedly acted with reasonableness and pru-
dence so far as their personal interest was concerned but
further than that they did not see. The claim, of the two
plaintiffs in Suit No. 120 of 1916 was adverse to the inter-
est of the
(1) (1922) 49 I,A. 342. (2) (1915) 21 C.L.J. 157.
809
reversion as they were claiming as legatees under the will.
The widows while entering into the compromise safeguarded
their personal rights only and thus in entering into it they
only represented themselves and not the estate or the rever-
sioners and surrendered nothing out of their rights, and it
cannot be said that in the true sense of the term it was a
bona fide settlement of disputed rights where each party
gave up something of its own rights to the other. The plain-
tiffs got an admission from the widows in regard to the
future succession of the estate that after their deaths they
would succeed though they were not heirs in accordance with
Hindu law. By this admission the widows lost nothing what-
soever. Those who lost were the ultimate reversioners and
their interest was not in the least either considered or
safeguarded. In these circumstances it seems to us that the
compromise cannot be held to be a bona fide settlement or
family arrangement of disputed rights and was entered into
by Mohan Kuer for her personal advantage and of the advan-
tage of Khem Kuer. The present case is analogous to the
decision of the Privy Council in Imrit Konwur v. Roop Narain
Singh (1). There in a dispute between a person claiming to
be an adopted son of the previous owner and the widow and
her daughters who would have title after her, the widow gave
up her daughters’ rights in consideration of her receiving
practically unimpaired what she could. Their Lordships held
that such a compromise could not stand, as indeed it was not
a compromise at all.
The learned Attorney-General laid considerable emphasis
on the decision of their Lordships of the Privy Council in
Mata Prasad v. Nageshar Sahai (2). In that case the widow
admitted the right of the reversioner under Act I of 1869
and agreed that succession will be governed by that Act.
The reversioner agreed to let her remain in possession and
undertook that he would not alienate the property during
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that period. The widow in that case was not constituted a
full owner under Hindu law and she did not get her full
rights
(1) (1880) 6 C.L.R. 76. (2) (1925) 52 I.A.393
810
under the compromise but as a matter of concession was
allowed to remain in possession by the reversioner and as a
matter of fact she sacrificed her rights to a considerable
extent and did not act for her personal benefit at all
except to the limited extent mentioned above. In the cir-
cumstances of that case it was held "that the compromise
was a bona fide family settlement of disputed claims and was
binding on the reversioners. In the present case the devolu-
tion of the property after the death of Chiranji Lal was
agreed to be in accordance with Hindu law and that being so,
the further devolution of the property after their death was
no concern of the widows. That was a matter of law. The
ultimate reversioners were stabbed in the back by the widow
and such a compromise cannot be held to be binding on them.
A large number of cases were cited before us in which com-
promises under different circumstances had been held to be
binding on the reversioners. We consider that it is wholly
unnecessary to examine those cases because the circum-
stances in which those compromises were made were quite
different from the circumstances of the present case.
Considering all the materials which were placed before us,
we hold in agreement with the High Court that the compromise
in the present case was neither prudent nor reasonable so
far as it affected the interests of the estate and that of
the ultimate reversioners and that being so, is not binding
on the plaintiffs. For the reasons given above this appeal
fails and is dismissed with costs.
Civil Appeal No. 30 of 1951.
This is an appeal by one of the transferees and arises
out of the same suit out of which arises appeal No. 29 of
1951. On the 13th June, 1928, Shah Madho Lal and his son
Shah Madhusudan Lal executed a sale deed (Exhibit M-13) in
favour of the appellant for the sum of Rs. 21,000. The
transferee while adopting the defence taken by Madho Lal and
by the heirs of Jwala Prasad, pleaded that he was protected
by the provisions of section 41 of the Transfer of Property
Act.
811
The High Court held that in cases where a person who has
allowed another to occupy the position of an ostensible
owner has a limited estate, the rule of section 41 applies
only during the lifetime of the limited owner and is not
available to protect transferees against the claim of the
reversioners. A number of authorities were cited in support
of this proposition. The learned counsel for the appellant
was unable to displace this proposition. It is quite clear
that the plea of section 41 of the Transfer of Property Act
could only be raised against Mohan Kuer or her legal repre-
sentatives but is not available against the plaintiff, Mohan
Kuer having acquired a limited life estate. This contention
is therefore rejected.
The learned counsel then contended that the plaintiff
Prem Kuer had relinquished her rights in favour of her sons
in 1933 and she had no locus standi to maintain the suit or
to appeal against the decision of the trial judge as the
title to the estate had vested in her sons. The plaintiffs
had alleged in para. 13 of the plaint that the relinquish-
ment was inoperative and void. The defendants did not dis-
pute that allegation and it is not open to them at this
stage to take up the plea which they could have taken in the
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trial court or in the appellate court. Even in the grounds
of appeal to this court the point was not taken. If the
point was taken at the proper stage the plaintiffs might
well have proved that the relinquishment was no longer
operative or they might have amended the plaint and put it
in proper form.
The learned counsel adopted the arguments of the learned
Attorney-General in the other appeal and for the reasons
given therein these points are decided against him. This
appeal therefore also fails and is dismissed with costs.
Appeals dismissed.
Agent for the appellant in Civil Appeal No. 29 of 1951:
S. S. Shukla.
Agent for the appellant in Civil Appeal No. 80 of 195
I:P. C. Agarwal.
Agent for the respondents in both: Rajinder Narain.
812