1. We are here dealing with a matter similar to that which has on several occasions been before a Bench of this Court. A Hindu widow brought a suit, and her allegations were that her deceased husband, and her husband's brother, originally joint owners of the family estate, had separated and divided that estate, and the widow sued to recover her husband's sharo. If the allegations in the plaint were true the family property would have had to be ascertained, and what practically amounted to a fresh partition would have had to be made. But however that may be, the nature of the suit is quite plain. The plaintiff in the suit was a widow. She maintained that her husband and his brother had separated in estate, and she claimed to recover her husband's share. She had a daughter named Chanchal, no son, and consequently the daughter was the nearest reversioner at that time to whatever might prove to be the widow's deceased husband's estate. The original defendant in that suit was the son of the husband's brother. Eventually the suit was compromised, .and by this compromise the entire property went to the defendant in that suit, that is to say passed away fore the widow, but the widow was to have a maintenance of Rs. 115 a year for life, and after her death, her daughter was to have maintenance at Rs. 30 a year for her life. The daughter was not a party to the suit, and when a reference was made, to arbitration the daughter did not sign that reference, nor is it found as a fact that she practically assented to the reference and took part in it although it is found that she was aware of it.
2. Chanchal the daughter has now brought this suit to have it declared that the decree in the earlier suit based on the award is. void and inoperative after the death of her mother defendant 6. The controversy involved in this suit is partly a matter of fact partly a matter of law. The salient facts are those I have stated, and as to them there is not now any dispute. The first Court decided in plaintiff's favour and made the decree asked for. Certain of the defendants appealed. The appeal was dismissed. The Judge in appeal held that apparently in no circumstances could an award decree of the kind we have here be binding on the reversioner unless the reversioner was a party to the suit and to the reference to arbitration. Now that as a statement of law is, I think, erroneous. We have in the judgments in Rama Santa Randive v. Daji Naru Randive : AIR1918Bom85 a fairly clear statement of what my learned brother Hayward and myself think on this question of the extent to which the decree in such a suit to which a widow is a party binds the reversioners. In my judgment in that case I called particular attention to the danger of the widow's interest being overridden where she comes in a litigation into conflict with a near agnate of her deceased husband, and I had in mind in that case the inherent danger of accepting as fair, compromises, or even awards, after reference to arbitration in which one of the parties is a widow and the other a near agnatic relative of her deceased husband. But though I think that the Judge in the Court below was wrong in the general expression that he gave to the law on this point, I think in the circumstances disclosed in this case that the decision of the lower appellate Court must be upheld.
3. We have here several of the most significant facts which go to make a Court hesitate to accept an award as fulfilling the conditions which the Privy Council indicated in Shivagunga's case (1864) 9 M.I.A. 539, and we have also a finding that in reality the property had been divided by the brothers, and that the widow was actually entitled to take her husband's share, which would on the widow's death pass to the next reversioner. So though the award might be good as regards the widow herself, because it settled the litigation, yet when we come to think of the rcversioner's interest, we find that all that she obtained was a maintenance allowance of Rs. 30 a year which is really very little better than nothing at all. So in the circumstances of this case I cannot reconcile it with either law or justice that the award decree should be upheld as against the present plaintiff', and I think the declaration granted by the trial Court and confirmed by the Court of first appeal is appropriate to the case. It is a declaration that the decree in regular Suit No. 61 of 1910 based on an award is void and inoperative after the death of defendant No. 6, that is the mother of the plaintiff', and that it is not binding on the plaintiff or her heirs, and I think this appeal should be dismissed with costs.
4. I concur.