ivil Appeals Nos 29 and 30 of 1951
Appeals from the judgment and decree dated 26th 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
MC Setalvad and Kirpa Ram K B Asthana with them for the appellant in Civil Appeal No 29 of 1951
KN Agarwal for the appellant in Civil Appeal No 30 of 1951
CK Daphtary G C Mathur with him for the respond ents in both the appeals
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
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
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 KuerShah Lal ChandMst
Mohan Kuer             Hira Lal         Shah Jai    Kisen    Mst
Ram Kuer  Kherpal         Shah Jwala Shah Sri Prasad Kisen    1Khem      Kuer Shah Madho Ram Chand Lachman Kishen Lal 2Phool 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
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 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
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
The name of Mst
Mohan Kunwar defendant against one half of the property in lieu of maintenance shall continue
799 4
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
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
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 vs 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 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 50000 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 20000 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 her inheritance and did not agree to accept any property
By means of a private arrangement ie 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 No1 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 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 3000 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 hadbeen 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 3000 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 3000 from the rever sioners and it is also clear that at her instance the rever sioners gave property of the value of Rs 50000 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 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 vs Pitti Durairaja Naidu1 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 sc
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 vs 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 1 808 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 vs Shyam Kumari 1 the true doctrine is laid down in Mohendra Nath Biswas vs Shamsunnessa Khatun2 decided in 1914 and it is that a compromise made bona fide 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 sowe 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 IA 342
2 809 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 vs 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 vs 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 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 2 1925 52 IA393 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 21000
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 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 section section Shukla
Agent for the appellant in Civil Appeal No 80 of 195 IP C Agarwal
Agent for the respondents in both Rajinder Narain


Summary:
The first petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of abeas corpus for directions to produce petitioners 2 and 3 his minor children before the Court on the allegation that they were wrongfully confined and upon the dismissal of the said application applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors
The District judge rejected he application and appointed the second respondent as such Guardian
The first petitioner appealed to the High Court against the said order of the District judge but that appeal was Dismissed
He applied for special leave to appeal to this Court but that application was also rejected
Thereafter the first Petitioner as natural guardian of petitioners 2 and 3 filed the present petition under article 32 of the Constitution
His casee in substance was that the interest of the second respondent was adverse to that of the minors that he had misappropriated their property and that the first respondent the State of Madhya Bharat was bound to take steps to protect the property of the minors which it had failed to do and had thus rendered itself liable to make good the loss sustained by the minors in consequence
Held that the petition was wholly misconceived and must be dismissed
The Court can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution
Where on account of the decision of a court of competent jurisdiction the right alleged by the petitioner does not exist and therefore its infringement cannot arise this Court cannot entertain a petition under that Article for protection of the alleged right
A claim as to denial of equality before the law or the equal protection of the laws can be made against executive action or against legislative process but not against the decision of a court of competent jurisdiction
Nor can an order of this Court rejecting an application for special leave under article 136 of the Constitution be circumvented by an application for a writ under article 32