JUDGMENT Gangeshwar Prasad, J.
1. This is a plaintiff's appeal and arises out of a suit for possession in respect of four shops and one third share in a house situate in Agra and for mesne profits. The following pedigree, which is not in dispute, will be of help in a proper appreciation of the facts of the case:
DAYA RAM | | | | Lachman dead Balwant Dal Chand = Mst. Kaushaya | | | | | | | Nathi Lal (dead) Panna Lal (dead) | | | | | | | | Virender Nath Brijendranath | defendant no. 1 defendant no. 2 | | | | | | | | | | | | Narendra Sachendra Dharmendra Ravindra Nath Devendra Nath | | | | | | Kalawati Damodar Das Mst. Chameli (dead) (predeceased Dal Chand) =Ranchhordas =Pushpa Wati (dead) | | Arjunsingh (Plaintiff) Prem Wati It would be seen that Dal Chand had a son, Damodardas, and two daugthers, Smt. Kalawati and Smt. Chameli. The case of the plaintiff, Arjun Singh, is that the property in suit was owned exclusively by Dal Chand and upon his death, which took place in August 1914, it devolved upon his two daugthers because his son had predeceased him. Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had been married outside Agra. The property was, therefore, being managed by Pannalal and Nathilal, nephews of Dalchand, on behalf of the two daughters. It has further been alleged that under an agreement dated September 2, 1914 the rent of the shops in suit, which were all in the occupation of tenants, used to be realised by Pannalal and Nathilal as agents of Smt. Kalawati and Smt. Chameli but the said agreement is not binding on the plaintiff. Smt. Kalawati is said to have died in 1925 and Smt. Chameli on April 30, 1944 and the plaintiff claims to have succeeded to the property after Smt. Chameli's death. It has also been stated by the plaintiff that Pannalal and Nathilal and, after their death, Pannalal's sons, Virendra Nath defendant No. 1 and Brijendra Nath defendant No. 2, had been rendering some slipshod accounts of the realisations made by them from the tenants and paying some petty amounts to Smt. Kalawati and Smt. Chameli but since the death of the two daughters the defendants had only been postponing settlement of accounts and, finally, they refused to hand over actual possession of the property in suit to the plaintiff. This state of thing is said to have compelled the plaintiff to institute the suit.
2. The claim of the plaintiff has been contested by both the defendants. Defendant No. 2 has pleaded that the plaintiff is not the son of Smt. Chameli but of the second wife of Ranchhordas whom the latter married after the death of Smt. Chameli which took place in 1926, that Damodardas, who predeceased his father Dal Chand, had given direction to his wife to adopt a son and this direction was confirmed by Dal Chand; and that under the authority to adopt given to Smt. Pushpawati she duly adopted Brijendra Nath defendant No. 2 as a son to her deceased husband. He has also raised pleas of estoppel, acquiescence and limitation. The allegation of the plaintiff regarding Pannalal and Nathi Lal having been in possession as agents has been repudiated and it has been asserted that Brijendra Nath defendant No. 2 has been in possession for over 35 years as owner. In the alternative it has been contended that Dal Chand died as a member of joint Hindu family and the property in suit was joint family property, with the result that after the death of Dal Chand it passed to the other co-parceners by survivorship and the plaintiff has no title to it.
3. Defendant No. 1 has filed a separate written statement which follows the line of defence taken by defendant No. 2. The additional facts stated by him are that the property in suit was thrown into the common stock and has been treated as joint family property by all the coparceners and that under a will Dal Chand bequeathed some moveable property to Smt. Pushpawati and her daughter Premwati besides confirming the authority to adopt given to Smt. Pushpawati by her husband, Damodar Das.
4. The learned Civil Judge framed the following issues on the basis of the pleadings of the parties and the statement of their counsel under Order 10, Rule 2. Civil P.C.:
"1. Whether the plaintiff is the son of Mst. Chameli daughter of Dal Chand as alleged?
2. Whether Dal Chand died as a separate member as alleged by the plaintiff and whether property in suit is his self-acquired property as alleged?
3. Whether the defendant No. 2 was adopted by the widow of Damodar Das deceased as alleged and whether the adoption was valid?
4. Whether the suit is under-valued and the court-fee paid is insufficient?
5. Whether the suit is barred by time?
6. Whether the suit is barred by estoppel and acquiescence?
7. Whether the suit is bad for nonjoinder of necessary parties?
8. Whether the plaintiff is entitled to mesne profits, if so, at what rate?
9. To what relief, if any, is the plaintiff entitled?"
5. On the evidence led in the case the learned Civil Judge felt bound to hold that Smt. Chameli survived till 1944 and did not die in 1926 as alleged by the defendants and that the plaintiff is her son. Issue No. 1 has accordingly been decided in favour of the plaintiff. On issue No. 2 as well the learned Judge has recorded a finding in favour of the plaintiff. He has held that the evidence shows that Dal Chand had separated from his brothers, that the property in suit was his separate property, that the sale deed by means of which the four shops in dispute had been acquired were in the name of Dal Chand and that there was no adequate nucleus of family funds or property which could lead to the acquisition of the said shops. The issue has, therefore, been answered by him in the affirmative. On issue No. 3 the finding of the learned Judge is against the plaintiff and in favour of defendant No. 2. His conclusion is that "on the material on record the finding must be that defendant No. 2 was duly adopted by Damodar Das's widow Pushwati and also that it must be taken that she had the authority of her husband to adopt." Issue No. 4 had been already decided as a preliminary issue by the predecessor in office of the learned Judge and the deficiency in court-fee found by him had been made good by the plaintiff. Issue No. 5 has been decided against the defendants and the suit had been held to be within time. The plea which gave rise to issue No. 6 has been held to have no force and that issue has also been decided against the defendants. Similar is the case with issue No. 7. In view of the finding on issue No. 3, the findings of the learned Civil Judge on issues Nos. 8 and 9 are naturally against the plaintiff and his suit has been dismissed. Having regard, however, to the fact that the defendant failed on most of the pleas and their case about a second wife a Ranchhor-das was found to be false and to the further fact that a letter purporting to have been written by Ranchhor Das and filed in defence was found by the learned Judge to be a forgery he directed that the parties shall bear their own costs.
6. Before us the entire controversy centred round issue No. 3 which relates to the factum and the validity of the adoption set up by the defendants. The learned counsel for the defendants-respondents did not at all challenge the findings recorded in favour of the plaintiff on issues Nos. 1, 2. 5. 6 and 7 and the appeal was argued before us on the footing that the findings on the aforesaid five issues may be accepted as correct. We have, therefore, to confine ourselves to a consideration of the questions that form the subject-matter of issue No. 3 which is, indeed, the basic issue in the case.
7. The most important piece of evidence bearing on this issue is a registered agreement, Exh. B14, executed on September 7, 1914, i.e. very shortly after the death of Dal Chand who, it appears, died in August 1914. The executants of this agreement were Smt. Kalawati and Smt. Pushpawati (the two daughters of Dal Chand) and Pushpawati (widow of Damodar Das). Since much turns on the effect and implication of this deed of agreement we reproduce below an English translation of the deed from the paper book.
"We, Mst. Natho alias Kalawati. wife of Pandit Moti Lal, and Mst. Chameli, wife of Ranchhor, daughters of Pandi Dal Chand and Mst. Pushpawati widow of Damodar Das son of Dal Chand, caste Brahmin, resident of Bhairo Belanaganj, Agra do declare as follows:
Pandit Dal Chand, our ancestor is dead and has left behind 4 shops situate in Noori-Darwaza, Agra, bounded as given below and Provident Fund of about Rs. 5000/- besides debts and move-able goods and a memorandum by way of a will has been found with Babu Ram Charan Das. Although Panditji deceased could not duly complete the will in his life time we are gladly agreeable to be bound by it and to act according to it, and we consider it our duty to be bound by it. We, have, therefore, while in a sound state of body and mind, while in proper senses, of our own accord and free will, do covenant and give in writing that in accordance with the desire of Pandit Dal Chand deceased we shall be bound to the following for ever:
(1) Mst. Pushpawati will be the owner in possession of the entire moveable and immoveable property during her life time and shall meet her personal expenses in Rs. 30/- p.m. In case some special expense has to be met, it shall be done with the approval of Pannalal, nephew of Pandit Dal Chand deceased. The income from the property of Panditii deceased, shall, after deducting the expenses, be deposited. If at any time Mst. Pushpawati takes into adoption any boy, according to the desire of her father-in-law Pandit Dal Chand deceased, he shall be the owner in possession of the entire property under the guardianship of Mst. Pushpawati and be legal representative of Pandit Dal Chand deceased. Mst. Pushpawati, if she be alive, shall be the owner of the property under the Sarbarakarship of Pandit Pannalal nephew of Pandit Dal Chand. In case both Mst. Pushpawati and Premwati die, then from among Mst. Kalawati and Mst. Chameli daughters of Pandit Dal Chand deceased, the one who remains alive shall be the owner in possession for life. If they too die without leaving a male heir, the property shall revert to the family of Pandit Dal Chand.
Boundaries of the 4 shops situate in Noori Darwaza. Agra bearing No. 2276: East Chhetta gali.
West Shops of Kanhaiya Lal and Hari Singh.
South Public way.
North Land pertaining to the shops, lane, thereafter house of Mst. Nazeer Begum.
Written on 2-9-1914.
We have executed this agreement, so that it may serve as evidence and be of use when needed. Left thumb impression of Mst. Kalawati wife of Moti Lal.
Left thumb impression of Mst. Chameli wife of Ranchhor.
Left thumb impression of Mst Pushpawati widow of Damodar Das.
Witnesses: Sd. Shyam Kishan son of Chunni Lal Brahmin, resident of Ramarauli Katra, Sd. Ranchhor Lal in urdu.
Sd. Kishan Deo Sharma."
The genuineness of this deed of agreement is not open to question and was, indeed not questioned either in the trial court or before us. The preamble to this deed makes it abundantly clear that Dal Chand left no will, and it only recites that Pandit Dal Chand expressed some wish in regard to the course that his property should take after his death in a memorandum which was found in the custody of one Babu Ram Charan Das. The memorandum did not constitute a will and it has been specifically mentioned in the deed of agreement that although the memorandum was "by way of his will" Pandit Dal Chand could not duly complete his will during his life time. The memorandum is not on record and defendant No. 2 nowhere pleaded that Dal Chand made a will or that the memorandum constituted a will and took effect as such and that in the absence of that will its terms may be ascertained from the deed of agreement Exh. 14. It is true that defendant No. 1 stated in paragraph 17 of his written statement that Dal Chand left a will whereby he gave some moveable property such as debts etc. to his son's widow, Smt. Pushpawati, and also corroborated and repeated the permission of his son Damodar Das to Smt. Pushpawati to adopt a son; but no evidence whatsoever has been given in support of this allegation, and the contents of agreement Exh. B14 to show that there was no completed will and that no moveable property was bequeathed by Dal Chand to Smt. Pushpawati and to her daughter Premwati as alleged by defendant No. 1 in his written statement. The position, therefore, clearly is that it is not possible or permissible to treat Exh. B14 as evidence of any will made by Dal Chand. While dealing with issue No. 9 the learned Civil Judge has observed that the plea that Dal Chand made a will with regard to the property in suit, which was raised only at the time of argument, was "untenable as well as one that cannot be allowed to be raised." We completely endorse the above observation. By means of the agreement under consideration the executants themselves entered into some covenants respecting the property left by Dal Chand and what can be said is that they believed that in entering into those covenants they were carrying out the wishes of Dal Chand. It cannot, in our opinion, be disputed that if the agreement can have effect that would be only as an agreement between its executants and it does not either incorporate the terms of a will or give shape to any directions or dispositions made in a will. It only purports to be a document in conformity with the wishes of Dal Chand.
8. That is about the effect of the document. But there is also one implication in the document which, to our mind, is equally patent. Authority to take a boy in adoption was, according to the agreement, conferred upon Smt. Pushpawati by Dal Chand and the fact that no other source of authority was mentioned in it obviously implies that there was no other source. Judging from the nature and the language of the document it seems clear that it was not drafted in a careless manner, and attention was paid to details relating to the rights of the executants and of the boy who might be taken in adoption by Smt. Pushpawati. We find it very difficult to conceive that if Smt. Pushpawati had been directed or permitted by her husband Damodar Das, who had died just a few months before the execution of this agreement, to adopt a son that fact could have escaped mention, particularly when the wishes of Dal Chand in regard to the adoption were specifically set out. The inference seems irresistible that till the date of execution of this agreement nobody concerned with the transaction had any idea that Damodar Das too had directed or authorised Smt. Pushpawati to take a son in adoption.
9-13. (After discussion of other documentary and oral evidence His Lordship proceeded). On the basis of evidence of this character it would not, to our mind, be possible to hold that the alleged permission of Damodar Das has been proved even if the agreement Exh. B14 and the application Exh. 18 referred to above were not on record. These documents, however, seem to us to be entirely destructive of the theory of an authority to adopt given by Damodar Das and, at any rate, so strongly suggestive of a contrary inference that oral evidence of only an unimpeachable and a most satisfactory nature can displace that inference. The evidence of Jwala Prasad is very far from being of that nature and, indeed, it is to our mind wholly unfit for reliance and untrue.
14. Before adverting to the evidence relating to conduct with a view to see to what extent, if any, the alleged adoption was accepted or recognised, we propose to examine the direct oral evidence in regard to the factum of adoption. That evidence consists of the testimony of two persons viz. D. W. 3 Jwala Prasad, whose statement in regard to the authority to adopt we have already discussed and rejected, and D.W. 4, Laxmi Narain. Both these witnesses deposed to the performance of ceremonies of adoption and to their having been present on the occasion. The statement of Jwala Prasad relating to the permission for adoption has been found by us to be altogether unacceptable and positively untrue and we consider him to be a wholly unreliable witness. We would, however, refer to one feature of his statement in regard to the fact of adoption. He states in the examination-in-chief that at the time of the adoption Pannalal made Brijendra Nath sit in his lap and gave him in the lap of Smt. Pushpawati after saying "yeh mera larka to hai hee aaj se tumhara larka bhi hua". His statement further is that after taking Brijendra Nath in her lap Smt. Pushpawati said "aaj se yeh mera aur mere pati ka bhi larka hua". About the word "bhi" in the second sentence quoted above it may be said that it refers to her "pati", but the meaning of the first sentence clearly and explicitly is that according to the words used by Pannalal Brijendra Nath remained his son even after the adoption although he (Brijendra Nath) became the son of Smt. Pushpawati also. If this is what happened at the time of the adoption, then complete severance of ties with the natural family and extinction of filial relationship with the giver in adoption which is necessary for adoption did not take place. The acts of giving and taking unaccompanied by any words might themselves have sufficed for adoption, but if the words ascribed to Pannalal by this witness were also uttered by him they became part of the act of giving and destroyed its efficacy for the purpose of adoption. It may be of some significance to note in this connection that there are documents on record, which will be referred to hereafter, showing that Brijendra Nath made claims to the properties of both Pannalal and Dal Chand. The statement of Laxmi Narain too is extremely unsatisfactory and, in our opinion, he too is a totally unreliable witness. (After discussion of evidence of this witness His Lordship proceeded).
15. The learned Civil Judge has observed that it is not always necessary to have direct evidence of authority to adopt and he has referred to Sri Kanchumarthi Venkata Seetharama Chandra Rao v. Kanchumarthi Raja, AIR 1925 PC 201 and Prem Devi v. Shambhoo Nath, AIR 1920 All 322. The correctness of the observation made by the learned Judge cannot be disputed. But neither the principle that both the factum of adoption and the authority to adopt may be proved by circumstantial evidence alone i.e. by conduct, repute and recognition etc. nor the consideration that evidence naturally gets lost with the passage of time would justify the acceptance of an oral testimony which merits rejection on account of its inherent improbability or intrinsic defects. The scantiness of direct evidence may certainly, in a fit case, be regarded as having been made up by circumstantial evidence of a convincing nature; but a direct evidence that not only fails to inspire confidence but also appears to be definitely untrue cannot be accepted by reason of the consideration that no better evidence might have remained available because of lapse of time. It is the paucity of direct evidence and not its falsity that may be supplemented or filled by circumstantial evidence. The reason why we do not accept the oral evidence either as to the fact of adoption or as to the authority to adopt is not that it is insufficient but that it does not at all impress us as true and it proceeds from witnesses whom we do not consider trustworthy. We may repeat that so far as the evidence relating to the authority to adopt is concerned, it is also negatived by the agreement Ex. B14.
16. We may now examine the evidence regarding the course of conduct of persons whose conduct may be relevant in determining whether an adoption took place and whether Smt. Pushpawati had the requisite authority to adopt. The learned Civil Judge has referred in his judgment to most of this evidence which, according to him, shows that from 1923 onwards Brijendranath gave himself out as the adopted son of Damodar Das and was also treated and accepted as such by others, and the learned counsel for the defendants respondents too referred to that very evidence and to no other in his arguments before us. (After discussion of some evidence on this aspect His Lordship proceeded).
17. It is true that Smt. Kalawati and Smt. Chameli admitted the fact of adoption in their application Exh. B-18 and the statement made in that application is admissible in evidence against the plaintiff; but still it is not the statement of predecessors in interest of the plaintiff because the interest that he claims is derived not from the holder of life estate but from the last male owner. The statement cannot, therefore, be treated as an admission against the plaintiff. Against Brijendranath defendant, however, there are his own statements in which he not only described himself as son of Pannalal but claimed as such the properties of Pannalal and Nathilal. Smt. Kalawati and Smt. Chameli are dead and no question of any explanation of the statement in Exh. B18 by the makers thereof arises. Brijendranath is, however, himself the main defendant in the case and it was incumbent upon him to explain the admissions and the circumstances in which they came to be made. Besides that, he is the most competent person to state how he has been living and conducting himself since he attained the age of discretion and how others have been treating him. But he has abstained from entering into the witness box and that must give rise to an inference adverse to him. The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give. Further, an acceptable explanation does not appear to be conceivable. So far as the application of Smt. Kalawati and Smt. Chameli is concerned it may easily be that the ladies were given to understand or believed that their father had left the memorandum spoken of in the agreement Exh. B14, that an adoption in accordance with the wish of their father was valid, that Smt. Pushpawati had actually taken Brijendranath in adoption and that it was not open to them to lay any claim to the property of Dal Chand in face of the agreement Exh. B14. An adoption may certainly be said to have been in contemplation at the time of the execution of Exh. B14 and the likelihood would thus be that it would take place but even according to the evidence led by the defendants the adoption was postponed for about four years. Could it not be that an agreement having been obtained from the daughters who were living in distant places with their husbands the idea of an actual adoption was given up the properties of Dal Chand, Pannalal and Nathilal were all enjoyed and treated on the same footing, Brijendranath was not made to lose his share in his father's property and in the property of his uncle, Nathilal, who had no son, and Brijendranath was only described as the adopted son of Damodar Das when the need for such a description arose in order to support a claim in respect of Dal Chand's property? We think that the evidence relating to the conduct of the persons concerned and to acceptance and recognition of the alleged adoption is such that the adoption cannot be said to have been established. Even if, however, the fact of adoption is regarded as inferable from the circumstances of the case, there can be no doubt that a finding that Damodar Das had authorised Smt. Pushpawati to adopt a son cannot be justified. It cannot be denied that an inference as to the existence of the authority necessary for validating an adoption may also arise from a long course of conduct, but the conduct which may give rise to that inference must throughout be characterised by uniformity and consistency. Here, not only is that characteristic lacking but there are two documents so strongly militating against that inference that it does not seem possible to raise it. These documents are, as we have noted, Exh. B-14 and Exh. B18 one of them of a date prior to the alleged adoption and the other of a date subsequent to it. These documents also falsify the oral evidence led in support of the authority to adopt. As a result of this discussion we hold that Brijendranath was not adopted as a son of Damodar Das and in any case the adoption, if it took place, was invalid because Smt. Pushpawati had no authority to adopt.
18. On behalf of the defendants-respondents it was also submitted before us that since Dal Chand was employed in Bombay and in the Bombay State a widow may adopt without the authority of her husband the adoption made by Smt. Pushpawati did not need the authority of Damodar Das. We have held that there was no adoption and the submission does not, therefore, require consideration. However, it is devoid of all force and, for a variety of reasons, it has to be rejected. Firstly, the plea that the adoption was governed by Hindu Law as prevalent in the Bombay State was not taken before the trial court and the trial of the suit proceeded throughout on the footing that the adoption was governed by the Hindu Law as administered in this State. Secondly, the plea involves a question of fact and it cannot, consequently be allowed to be raised at this stage. Thirdly, both Damodar Das and Smt. Pushpawati lived at Agra and the adoption too is said to have taken place there and the fact that Dal Chand lived in Bombay is not at all relevant. Fourthly, even in the case of Dal Chand the mere fact that he was living in Bombay in connection with his employment did not amount to migration to the Bombay State and to giving up residence in this State. And fifthly, where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law. i.e., the laws and customs as to succession and family relations prevailing in the State from which it came and this presumption has to be rebutted by showing that the family has adopted the law and usages of the State to which it has migrated vide Mulla's Principles of Hindu Law page 89 (Twelfth Edition) and there is nothing on record to rebut the presumption.
19. It was then contended for the defendants-respondents that the agreement embodied in Exh. B14 amounted to a family settlement and as such it is binding on the plaintiff. It would appear from the judgment of the learned Civil Judge that this plea was attempted to be raised at the stage of argument before him but the learned Judge did not allow it to be raised and observed:
"Another point raised was that the agreement Exh. B14 operated as a family settlement binding on reversioners. This plea also involves questions of fact and when it is not raised in that way in the written statement it is difficult to entertain it at the stage of arguments. Various questions of fact would be relevant before it can be stated that the family settlement is a bona fide one so as to bind the reversioners. In fact during arguments it was practically undisputed that this settlement in which nothing has been reserved for the widow cannot be supported as a bona fide family settlement in the interests of estate binding on the reversioners. The only ground on which it was sought to be supported is that it should be regarded as a surrender in favour of a stranger with consent of the nearest reversioners alive at that time. But qua this position also the difficulties are: (1) that the plea was never raised (2) it is doubtful that there can be said to be a total surrender because the widow gets property back after Pushpawati and Premwati if there has been no adoption (3) though there is a Calcutta case on the point the position that surrender to a stranger can be supported as transaction of surrender in favour of the reversioners and a transfer by them to the stranger is not free from difficulty. I am therefore of the opinion that this question too cannot be allowed to be raised at this stage. Prima facie I also think that the transaction cannot be upheld by treating it as a valid surrender followed by a transfer by Pannalal, Nathilal and Hira Lal in favour of Pushpawati."
The learned counsel urged that the material necessary for the decision of the question raised in this plea is on record and that the plea only involves a determination of the true legal character of the agreement. We propose to deal with the plea. The first question to be considered in relation to this plea is whether Exh. B14 amounts to a family settlement. The nature and scope of this family settlement, the elements that go to constitute it, the objects for which it may be entered into, and the things that may form the consideration for it and thus support in law have all been laid down and explained in numerous decisions, but we may refer only to Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836; Ram Charan Das v. Girja Nandini Devi, AIR 1966 SC 323 and Mst. Dasodia v. Gaya Prasad, AIR 1943 All 101 (FB).
Let us now examine the circumstances in which Exh. B14 was executed and the purposes it was intended to effectuate. There is nothing to indicate that there was any dispute amongst the members of the family or that any claim and counter claim relating to the property of Dal Chand had been put forward, and it does not at all appear that any future dispute against which the property of Dal Chand had to be preserved or from which the family had to be saved was apprehended. There is also nothing to suggest that the peace of the family was in ieopardy and there was any danger to the harmony and amicable relations amongst its members. Further, the parties to the agreement were fully cautious of the fact that the memorandum referred to in Exh. B14 did not amount to a will and it possessed no legal efficacy. The argument on behalf of the defendants respondents was that although there might have been no present dispute to be settled or likely future dispute to be avoided the possibility of some dispute at some future point of time could not be ruled out and that possibility should also be taken into account. Such a possibility, we may say, will always be there so long as a family owns some property, but it is not that remote and hypothetical possibility that is to be considered in judging whether an agreement partakes of the nature of a family settlement. If that were; so, all agreements, irrespective altogether of their nature, by members of a family and 'family' has a wide connotation in this context would be family settlements. Such a view of family settlements does not appear to be correct. We are fortified in our opinion by the decision of their Lordships of the Supreme Court in Potti Lakshmi Perumallu v. Potti Krishnavenamma, AIR 1965 SC 825. The deed Exh. B14 does not to our mind, fulfil the character of a family settlement.
20. It has also to be remembered that a family settlement entered into by the holder of a life estate to which the reversioner is not a party and to which he has not in any manner assented does not stand on the same footing as a family settlement to which the reversioner is a party or to which he has in some manner given his assent. A family settlement of the former kind has to be prudent and reasonable also besides being a bona fide settlement, before it can bind the estate and the reversioner. The question of prudence and reasonableness may not enter into consideration if the binding effect of a family settlement only on the parties thereto has to be decided, but having regard to the nature of the estate possessed by the holder of a life estate under the Hindu Law this is a matter of utmost importance in deciding whether a family settlement binds a person who was not a party to it, does not claim through the person who was a party and has not assented to it. In Phool Kuar v. Prem Kuar, AIR 1952 SC 207 their Lordships of the Supreme Court observed:
"The question whether the transaction 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 Ramsumran Prasad v. Shyam Kumari, 49 Ind. App. 342 = (AIR 1922 PC 356), the true doctrine is laid down in Mohendra Nath v. Shamsunnessa Khatun, 21 Cal LJ 157 = (AIR 1915 Cal 629) 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."
The applicability of the principle laid down by their Lordships is not confined to compromises in suits and it applies with equal force also to family settlements which are not made in or in connection with any suit. Reference in this connection may be made to Mulla's Principles of Hindu Law page 287 (Twelfth Edition). That there is a difference between the position of a person who is a party to a family settlement or claims through a party to it and that of a person who is neither a party nor claims through a party to it has been pointed out by the Supreme Court in Sahu Madho Das v. Mukand Ram. AIR 1955 SC 481,
21. Was then the agreement Exh. B14 prudent and reasonable judged not from the point of view of benefit to Smt. Kalawati and Smt. Chameli but from the point of view of benefit to the estate? The answer seems to us to be clearly in the negative. The daughters, according to the recitals in the deed, knew that the memorandum referred to in Exh. B14 did not amount to a will and could not operate as such. The result obviously was that the property of Dal Chand would have gone to them as daughters and then to their sons as reversioners. They, however, gave no thought to or ignored the legal position altogether and in their desire to respect the wishes of their deceased father they executed an agreement embodying those wishes. For them prudence, reasonableness and benefit to the estate were entirely out of question and the sole consideration guiding them was to let things be as their father desired them to be in the memorandum which, they believed, had been made by him. Their minds had not at all gone to the making of the covenants incorporated in Exh. B14; they had only given the shape of an agreement to what they believed to have been the wishes of their father. Their attitude may have been praiseworthy and their act laudable, but it was not a prudent or reasonable act or for the benefit of the estate as required under the Hindu Law. It was obvious that Smt. Pushpawati, the widow of a predeceased son, could have no right to the property of Dal Chand. It was also obvious that Dal Chand could not authorise Smt. Pushpawati to take a son in adoption and that an adoption on the basis of such authority could not be valid. Further, even in the event of a valid adoption by Smt. Pushpawati, the adoption could not have had the effect of divesting Smt. Kalawati and Smt. Chameli of the interest which had already vested in them respecting such property of Dal Chand as was his self-acquired and exclusive property, and the finding of the learned Civil Judge is that the four shops in dispute were his self-acquired property. As the shops were not ancestral or coparcenary property, Damodar Das had no interest in them at the time of his death. As such Smt. Kalawati and Smt. Chameli would have remained owners of the shop in suit and their rights would have remained wholly unaffected by even a valid adoption by Smt. Pushpawati. We may refer in this connection to Krishnamurthy Vasudeorao Deshpande v. Dhruwraj, AIR 1962 SC 59 where their Lordships of the Supreme Court held:
"The principle of relation back applies only when the claim made by the adopted son relates to the estate of his deceased father When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested."
Now, Smt. Kalawati and Smt- Chameli were free to divest themselves of their own interest in the property of their father and an agreement by which they did so might have been binding against them, but the question is whether it would bind the estate and the reversioner. It does appear that they did not care even for their own interest in the property but their indifference towards their own interest would only deprive the agreement all the more of a binding effect on the reversioner. That they did not act from any motive of advantages to themselves would not at all matter if they acted in utter disregard and to the detriment of the interest of their estate. What would have been the result if they had not entered into the agreement Exh. B14? The property would have remained theirs and the plaintiff would have succeeded to it after their death. The memorandum was not a will and even if there were a will of Dal Chand there could be no valid disposition thereunder in favour of a person who might be adopted by Smt. Pushpawati if she so chose and under an authority which Dal Chand was not competent to confer. We are, therefore, clearly of the opinion that the agreement incorporated in Exh. B14 was imprudent, unreasonable and prejudicial to the estate and it does not in any manner affect the rights of the plaintiff. We may also observe here that Exh. B14 was not an agreement by which an adoption which had already taken place was accepted as valid but an agreement by means of which an invalid authority for any adoption was virtually sought to be conferred by persons totally incompetent to do so.
22. There is nothing to indicate that there was any ratification of the agreement Exh. B14 on the part of the plaintiff. The mere fact that he filed this suit in 1952 although Smt. Chameli had died in 1944 cannot amount to ratification. It is necessary to bear in mind the observations of their Lordships of the Supreme Court in T. B. R. Subbu Chetty's Family Charities v. M. Raghava Mudaliar, AIR 1961 SC 797 that the principle of election or estoppel or ratification must be applied with due circumspection. Here no benefit whatsoever was taken by the plaintiff and, in fact, no benefit could ever accrue to him under the terms of Exh. B14 in the event of an adoption by Smt. Pushpawati. No question of ratification, therefore, arises.
23. For the reasons discussed, the plaintiff is entitled to a decree for possession of the properties in suit. He is also entitled to a decree for mesne profits for a period of three years preceding the date of the suit and also for pendente lite and future mesne profits till the date of delivery of possession to the plaintiff. The learned Civil Judge has given no finding as to the amount of mesne profits. That, however, will be done in proceedings for the preparation of a final decree for mesne profits.
24. In the result the appeal is allowed with costs, the decree of the learned Civil Judge is set aside and the suit of the plaintiff for possession of the properties in suit is decreed. The plaintiff is also granted a decree for mesne profits against defendant No. 2 for a period of three years preceding the date of suit and for pendente lite and future mesne profits. The decree for mesne profits, however, is only a preliminary decree. The amount of mesne profits payable to the plaintiff by defendant No. 2 shall be determined by the trial court and a final decree in respect of the amount due shall be passed in favour of the plaintiff against defendant No. 2 on payment of requisite court-fee.