Patkak, Ag. C.J.
1. This was a suit brought by the plaintiffs to recover possession of the property in suit by inheritance to their grandmother, Parvatibai, the widow of Pandurang, who died in the year 1924. Defendant No. 1 is the brother and defendant No. 2 is the nephew of Pandurang the husband of Parvatibai.
2. On January 21, 1922, there was a deed of partition, Exhibit 38, between Parvatibai on the one hand and defendants Nos. 1 and 2 on the other, under which outstandings to the extent of Rs. 2,100 were allotted to the widow and she had to pay debts amounting to Rs. 1,500 to the creditors. The widow, therefore, got property worth Rs. 600. The defendants, on the other hand, got property worth Rs. 1,183 subject to the liability to maintain Rukhmabai, another widow in the family. The material portion of the document is as follows:--
We hereby declare that we have no right, title and interest whatsoever in the said property under any circumstances whether you adopt a son and give it to him or whether you give it to your daughter or whether you alienate to anybody in any way as full owner thereof.
3. Parvatibai purchased the equity of redemption in the property in suit which was mortgaged to the family, and paid off the sub-mortgage in favour of a stranger out of her own separate proparty, and enjoyed the property as full owner from 1902 till her death in 1921.
4. The learned Subordinate Judge held on the construction of the document that Parvatibai was at liberty to bestow the property on her daughter or to dispose of it as owner in any way she liked, and that the executants had no right whatever over the property and that the document conferred, in terms, an absolute estate upon Parvatibai in the share allotted to her. He, therefore, came to the conclusion that the property was the absolute property of Parvatibai, and that the plaintiffs, her granddaughters, were entitled to that property by inheritance and passed a decree in favour of the plaintiff's.
5. On appeal, the learned District Judge agreed with the construction of the learned Subordinate Judge so far as the power of alienation was concerned, and held that Exhibit 38 gave Parvatibai an absolute right over the property, and that she could have alienated the same or given away the same to anyone, and that she could have willed it away at her pleasure, but he was of opinion that the property remained as the property held by Parvatibai as widow of Pandurang and inheritable by her husband's heirs and not her stridhan heirs.
6. On second appeal, Baker J. was at first inclined to hold that the concluding paragraph of Exhibit 38 evidenced a family arrangement referred to in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh but eventually came to the conclusion that the document, Exhibit 88, should not be regarded as a family arrangement on the ground that the defendants had no interest which they could transfer by way of gift or otherwise, and therefore agreed with the view of the lower appellate Court. Plaintiffs have, filed this Letters Patent appeal.
7. It is urged on behalf of the appellants that Exhibit 38 is a partition-deed in which an absolute estate is given to the widow and falls within the remarks of the Privy Council in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh.
8. In construing the document, Exhibit 38, we have to look to the circumstances existing in 1902, and not at the time of the present litigation. According to the document, Exhibit 38, the property comprised in Exhibit 38 was the self-acquired property of Pandurang. Pandurang had become separated from the defendants but the documents relating to the lands were taken in the name of the defendants, and it was agreed that the property of Pandurang should be partitioned between Pandurang's widow, Parvatibai, and the defendants. Property to the extent of Rs. 2,100, subject to the payment of debts of Rs. 1,500, was allotted to Parvatibai, and property worth Rs. 1,133 was allotted to the defendants subject to the right of maintenance of Rukhmabai.
9. It is contended on behalf of the respondents that the defendants could not alter the devolution of inheritance so far as the property of Pandurang was concerned, and that the document merely evidences an agreement by the defendants not to dispute the alienations made by the widow Parvatibai.
10. The question depends on the construction of Exhibit 38. Parvatibai, described as the full owner of the property, is given a right to alienate property by sale, or mortgage, or by any way whatsoever, and the defendants declared that they had no right, title or interest under any circumstances. It has been held by the Privy Council in the cases of Bhaidas Shivdas v. Bai Gulab (1921) L.R. 49 IndAp 1 24 Bom. L.R. 55 Shalig Ram v. Charanjit Lal : (1930)32BOMLR1578 and Jagmohan Singh v. Sri Nath : (1930)32BOMLR1609 that where there are words indicating that an absolute interest is given to the widow, she takes an absolute property. It was observed in the last case that there is no magic in the use of any particular words or form of words and the document must be construed as a whole and if it confers the estate out and out with no reservation, right of alienation would be included even if not expressly conferred. In Exhibit 38 the power of alienation is expressly conferred. These decisions relate to wills or gifts in favour of a wife or widow. But in the case of a partition deed between a Hindu widow and the other male members of the family, it was held by the Privy Council in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh that the estate a widow gets by right, of inheritance stands on the same footing as the estate acquired on partition subject to this condition that the members of the joint family effecting the partition may agree that a portion of the property shall be transferred to the widow by way of absolute gift, as part of her stridhan, so as to constitute a provision for her stridhan heirs. If this document is construed to be a partition-deed, we think that the absoluts estate conveyed under Exhibit 38 would fall within the remarks of the Privy Council at p. 131 in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh, It is, however, contended on behalf of the respondents that the document is not, in fact, a partition-deed, that the property belonged to Parvatibai's husband and the defendants had no right to give an abolute estate to the widow and had no right to alter the mode of devolution.
11. I think, however, in the circumstances of the present case, as the deeds relating to these lands stood in the names of the defendants there was a dispute between the parties as to the title relating to this property, and the document evidences a family arrangement which settled the dispute between the parties and was binding on them.
12. It is urged on behalf of the respondents that Ex. 38 cannot be construed to be a family arrangement, because the defendants had no right to the property and that the property belonged to Parvatibai's husband. When there is a settlement of a dispute or a family arrangement it must be construed as a settlement of the dispute between the parties in whom there is presumed to be an antecedent title of some kind, according to the view taken by the Privy Council in Rani Mewa Kuwar v Rani Hulas Kuwar (p. 166):--
The compromise is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and definee what that title is. The claim does not rest on contract only, but upon a title to the land acknowledged and defined by the contract.
13. I may also refer in this connection to the case of Krishnaji v. Motilal (1928) 31 Bom. L.R. 476 In Ram Charan Ramanuj Das v. Gobinda Ramanuj Das (1928) 31 Bom. L.R. 715 it was held that when two parties enter into an agreement, whether it be of compromise or in some other respect, each procures the advantage of the agreement from the other, and no further advantage need be looked for to support the agreement. In the present case the defendants were not entitled to any property of Pandurang and under the agreement they were given property to the extent of Rs. 1,100. That, in our opinion, is sufficient consideration for the agreement on the part of the defendants to give an absolute title to the widow under Exhibit 38, and the document, Exhibit 38, in our opinion, under the circumstances of the present case, must be regarded as a family arrangement between the parties. The documents relating to the lands stood in the name of the defendants and this circumstance would vest the apparent legal title in the defendants though the properties were the self-acquisitions of Pandurang, the husband of Parvatibai. There was, therefore, uncertainty as to the rights of the rival claimants, and Exhibit 38 composed the disputes between the parties and must be considered as a-family arrangement by a settlement based on the acknowledgment of a pre-existing title in the parties to the document, There was no intention to alter the devolution of the estate as at the date of the document Dwarkabai, the daughter of Pandurang, was living and would have succeeded to the property in any event. We think, therefore, that the estate which was given to the widow under Exhibit 88 was an absolute estate and formed part of her stridhan, and therefore, the plaintiffs as the granddaughters of Parvatibai are entitled to succeed to this property in ' preference to the defendants who are the rever-sioners.
14. With regard to the house in suit, it has been found by the learned Subordinate Judge that it was acquired by Parvatibai out of her own funds, and it appears from the evidence that she was in possession of independent means. We think that the view taken by the learned Subordinate Judge is right, and we would, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs throughout on the respondents.
15. The question to decide is, who is the heir of Parvatibai who died in 1921, and the answer depends on the character of the property and the parties' previous dealing with it, for if it is stridhan it should go to her grand-daughters, and if not, to the defendants, the reversioners of Parvati's deceased husband.
16. It appears that on Parvati's husband's death the greater portion of the property stood in the defendants' names, was in their possession, and had been long enjoyed by them. It is obvious that as against the widow they were in a strong position. There is no direct evidence as to what happened, but it must have been what is clearly brought out by Exhibit 88. This document opens with admissions made by defendants, much against their interest, in view of the facts I have mentioned in connection with their relation to the property. They admit that the property had been self-acquired by Parvatibai's husband, that he was separate from them, his brothers, at his death and that they had themselves no interest. It then recites an agreement to divide it with the widow, the greater part going to the defendants, while they recognise the widow's right to the remainder, to be dealt with as her absolute property, and not as widow's estate. At the time, the heir was Parvatibai's daughter Dwarkabai, but since her death in 1911, Dwarkabai's daughters can only inherit her stridhan.
17. The original Court's view was that, by the agreement, the defendants had undertaken to allow the property going to Parvatibai to be hers absolutely, so far as they were concerned, and decreed the suit. The learned District Judge took another view, and reversed the decree holding that, though Parvatibai might have disposed of it in her lifetime, it remained the estate of her husband during her widowhood, and on her death reverted to his heirs. My learned brother, Baker, upheld this view on second appeal, but gave leave to appeal to a bench, His view was that defendants had originally no interest to give away, and could, therefore, confer nothing on Parvatibai. But actually they had a paper title, documents and possession, It seems to me that the admissions in Exhibit 88 were really part of a price for what they got, and the position really was that in consideration of getting a present portion they undertook to waive any right they might acquire in future as reversioners--that is, so far as they ware concerned, to recognise that it became Parvatibai's absolutely. The terms of the instrument are very wide and as things have turned out, though the reversion was then a possibility it has now opened, and it seems to me that the case falls within the explanation in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh It is not, I think, a question of altering the devolution of property, only of an agreement for consideration not to claim the portion reserved to Parvatibai as reversioners, should the reversion open out and as such, I think, a perfectly legal settlement.
18. I agree with the learned Subordinate Judge's judgment whose decree should be restored and the appeal allowed.