Case: Ram Charan Das Vs. Girjanandini Devi And Ors

2. The property covered by the deed belonged to one Kanhaiyalal who died on June 10, 1922 without leaving a widow or any issue. This property along with some other property originally belonged to Kanhaiyalals grand-father Chunnilal. It is said by some of the parties that by a will executed by him in the year 1883 he devised his property in favour of Kanhaiyalal and his brother Madho Prasad. Madho Prasad died during the lifetime of Kanhaiyalal, leaving a daughter Maheshwari Bibi. After Madho Prasads death Kanhaiyalal entered into possession of the property which had been bequeathed to Madho Prasad by Chunnilal. After Kanhaiyalals death Kadma Kuar, his mother, entered into possession of the entire property which was in the possession of Kanhaiyalal till his death. Kadma Kuar died on October 14, 1937 and shortly thereafter the suit out of which this appeal arises was instituted by Ram Charan Das, the appellant. It may be mentioned that Kanhaiyalal and Madho Prasad had a sister by name Mst. Pyari Bibi. She had a son named Gopinath who died in the year 1934 leaving a widow, Girja Nandini, the first defendant to the suit. The plaintiff is the sixth son of Diwan Madan Gopal. Diwan Madan Gopal was one of the two sons of Brijlal and Brijlal was the only son of Deoki Nandan. Deoki Nandan himself was the elder brother of Chunnilal. The plaintiff who is the appellant before us is thus a collateral of Kanhaiyalal. It is not disputed that he and his brothers were the next reversioners entitled to succeed to Kanhaiyalals property after the death of his mother Kadma Kuar. To this suit he joined Girja Nandini Devi, widow of Gopinath as defendant No. 1 and it is she who is the contesting respondent before us3. Soon after Kadma Kuar entered into possession of the estate of Kanhaiyalal, she applied to the appropriate authority for taking over possession of management of the property which was in the possession of Kanhaiyalal at the time of his death whereupon the Court of Wards took over its management under S. 10 of the U. P. Court of Wards Act, 1912 (IV of 1912). This property consisted not only of the property which Kanhaiyalal had obtained under the will of Chunnilal but also of the property which had been bequeathed in that will to Madho Prasad and of which Kanhaiyalal had obtained possession during his lifetime. Maheshwari Bibi, the daughter of Madho Prasad laid a claim to the property which had been bequeathed by Chunnilal on the ground that the two brothers who took these properties under Chunnilals will took them not as joint tenants but as tenants in common. The claim made by her in this respect was examined by the Court of Wards and upon Kadma Kuar agreeing, the Court of Wards released half of the estate under its management, that is, the share in the property which is said to have been bequeathed to Madho Prasad4. It is necessary to refer to three suits which came to be instituted during the lifetime of Kadma Kuar, the first of which is 30 of 1932. This was instituted by Gopinath who claimed to be the next reversioner upon the ground that he being the sisters son of Kanhaiyalal, had become an heir preferential to the present appellant and his brothers because of the passing of the Hindu Law of Inheritance (Amendment) Act of 1929. To this suit Maheshwari Bibi and Kadma Kuar and the Court of Wards were made defendants. He sought therein a declaration to the effect that the Court of Wards had no right to release half the property in favour of Maheshwari Bibi. This suit, however, was eventually withdrawn. Two other suits, suit Nos. 53 of 1932 and 54 of 1938, came to be filed shortly thereafter. In the first of these the present plaintiff was himself the plaintiff while in the second, his brother Hanuman Prasad (defendant No. 6 in the present suit) was the plaintiff. Both of them claimed to be the nearest reversioners upon the ground that the Act of 1929 did not affect their right to the properties left by Kanhaiyalal. Each of them sought a declaration that Maheshwari Bibi and Gopinath had no right of any kind in respect of these properties. These suits were founded on the ground among others that Maheshwari Bibi had no right because Chunnilal could not by his will devise the property to her father Madho Prasad and Gopinath had none because he was not in fact Kanhaiyalal sisters son. Gopinath, Maheshwari Bibi, Kadma Kuar and the Court of Wards, were made parties to these suits. It is common ground that the claims in both these suits were compromised. Under one of the compromises the dispute with Maheshwari Bibi was settled and we are no longer concerned with that matter. Under the other compromise the dispute with Gopinath and Kadma Kuar was settled. Decrees were drawn up in these suits embodying the terms of each of the compromises arrived at amongst the parties. The latter compromise was entered into in suit No. 53 of 1932 and its date was March 31, 1933. The document, Ex. Y-13 embodies the terms of the compromise in suit No. 53 of 1932. To that document, amongst others, the appellant, Gopinath and Kadma Kuar were parties.

Reasoning: In our case, however, there is fortunately only one transaction and we have definite evidence to show that there were disputes amongst the members of the family and it was avowedly for settling them that the transaction was entered into. Further we have material to show that all the persons who can be said to be interested in the property were joined as parties to the transaction. In that sense this case is stronger than the one which the Privy Council had to consider. We have therefore no hesitation in holding that the plaintiff who has taken benefit under the transaction is not now entitled to turn round and say that that transaction was of a kind which Kadma Kuar could not enter into and was therefore invalid. Moreover acting on the terms of that document Gopinath paid monies to the Court of Wards for obtaining release from its management of the properties which were allotted to him. The rule of estoppels embodied in S. 115 ofthe Indian Evidence Act, 1872 would, therefore, shut out such pleas of the plaintiff. Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagoudas case, 54 Ind App 396: (AIR 1927 PC 227  ), of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafterHere the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of S. 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44, approving the earlier decision in Khunni Lal v. Govind Krishna Narain, ILR 33 All 356 (PC), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nowlakhbati, 53 Ind App 11: (AIR 1926 PC 2  ).In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibis case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden, 46 Ind. App 72: (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection. In the second place, in the case relied upon by Mr. Sinha there was no question of the transaction being a family settlement. It was sought to be supported upon the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender S. 60 of the Bihar Court of Wards Act upon which reliance was placed in that case would not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. Maheshrani Misrain, 47 Ind App 233: (AIR 1921 PC 107), in support of the appellants contention that the transaction was valid. While distinguishing this case the Privy Council observed:"In that case there were serious disputes in the family as to title, and the next reversioners to the son sued the widow and her daughters to set aside the will of her husband under which the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, and in performance of it the widow surrendered all her rights of succession to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being objectionable, and consequently that the transaction was valid under the principles laid down by the Board in 46 Ind App 72: (AIR 1918 PC 196)We may further point out that this decision does not refer to their decisions in AIR 1914 PC 44 and ILR 33 All 356 (PC), and it cannot be assumed that they intended to depart from their earlier view12. Apart from that it may be pointed out that the two suits which were then pending were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not entitled to press in aid the provisions of S. 37(a) of the U. P. Court of Wards Act.