1. The common ancestor to the parties to this suit was Anand Singh, who had five sons, Chattar Singh who died with-out issue, Darjau Singh who died in 1823 leaving a son, Chakarpan, Sundar Singh who died in 1826 leaving a widow, Gulab Knar, Des Raj who died in 1852 leaving a son, Gandharp Singh, and Chattarpat who died in 1829 leaving a widow, Sahih Knar. Chakarpan had three sons, who are the appellants; and Gandharp Singh had two sons, Ujagar Singh, the respondent, and Madho Singh, who is still a minor. The estates in suit was, after Chattar Singh's death, originally recorded as held in four shares of 5 hiswas each, held respectively by Davjan Singh, Sundar Singh, Dos Raj, and Chattarpat. On the death of Darjan Singh, Chakarpan was entered as the holder of his share, and after the deaths of Sundar Singh and Chattarpat, Dew Raj was at first recorded as the owner of their shaves, but shortly afterwards the name of the widows Gulah Kuar and Sahib Kuar were entered as the holders of their husbands' shares. Again, at a later period, the names of Ajudhia Prasad and Budh Singh, who were then aged four and two years old respectively, were substituted for those of the widows. The estate fell into arrears, and was eventually sold at auction for a balance of Government revenue, but a farm was given to Chakarpan, Ajudhia Prasad, Budh Singh, and Des Raj. In 1853 the Government having purchased the estate at auction-sale proposed to re-grant it to the old zamindars and farmers, and a report regarding the ownership of the estate was called for. The Tahsildar reported that it appeared from the statement of Chakarpan and Gandharp Singh, son of Des Raj, that the widows of Sundar Singh and Chattarpat had made a gift of their shares to Ajudhia Prasad and Budh Singh by deeds attested by the kanungo, and the kanungo confirmed the statement. On the 2nd May 1853, the Collector of Farukhabad inquired of Chakarpan, Gandharp Singh, Budh Singh, and Ajudhia Prasad in what manner they proposed to divide the estate among themselves if it was granted to them by the Government, and they replied that all four would hold five biswas each. The Government eventually agreed to grant the estate on condition that the arrears of revenue which had accrued when the estate was sold should be discharged. This offer was accepted, and each of the four persons above-mentioned contributed his quota. On the 3rd April 1855, the same persons appeared before the Revenue officer, and requested that each of them might be recorded as the owner of five biswas, and that Chakarpan and Gandharp Singh should be entered as lambardars, and Ajudhia Prasad and Budh Singh as pattidars. It was ordered that a village administration-paper should be prepared, and in that document, which is dated the 5th April 1855, they wore entered as in possession each of five biswas. So matters continued until 1864, when, on the 15th November, they agreed to the appointment of arbitrators and an umpire to divide these shares. The arbitration proceedings lasted for upwards of two years, when Gandharp Singh advanced a claim to a ten biswas share, and the arbitrators refused to proceed with their award.
2. On the 29th March 1867, Gandharp Singh brought a suit to obtain possession of a two and-a-half biswas shares out of the five biswas originally held by Gulab Kuar, then deceased, and for a declaration of his right to a two and-a-half biswas share out of the five biswas originally held by Sahib Kuar. He all aged that each of the four sons of Anand Singh had, on the death of Chattar Singh, obtained a five biswas share; that the widows of Sundar Singh and Chattarpat had been recorded as the holders of their respective husband's shares to ensure their maintenance; that these ladies had in 1855 appointed Ajudhia Prasad and Budh Singh their agents to take the account of the profit and loss on these shares, and that in the lifetime of the ladies Chakarpan wrongfully procured the substitution of his sons' names for the names of the widows. He claimed that the estate of Sundar descended on the death of his widow to Chakarpan and Des Raj, and that on the death of Sahib Kuar he would become entitled to possession of one moiety of her share. On the 26th June 1867, the parties to the suit effected a compromise, agreeing to divide the estate into four lots on the conditions set out in their petition to the Court. A decree was accordingly passed in the terms of the compromise. The respondent now sues to obtain the same relief as was sought by his father in 1867, and a declaration that the arrangement effected by the compromise and the decree are ineffectual. The respondent's father is still alive. There is this difference between the claim asserted by the respondent and his father, that the latter treated the estate as held in separate shares, the former asserts the estate remained joint until 1867. If by 'joint' he means undivided, there is no difference in the claims. The Subordinate Judge has decreed the claim. It appears to us impossible to support the decree. Assuming, which is not certainly proved, that the family remained joint until 1867, the respondent's father for all intents and purposes represented the interest in the estate which devolved and would on partition fall to the separate share of himself and his children, and the respondent must be bound by his acts, unless he can show such fraud and collusion as would entitle him to relief on those grounds. Of this there is no evidence. On the contrary, Gandharp Singh asserted his claim, and if he forbore to press it in view of the circumstances to which we have adverted, it can hardly be doubted he prudently put an end to litigation which must have resulted in failure. There can hardly be a question that the shares of Sundar Singh and Chattarpat were entered in the names of Ajudhia Prasad and Budh Singh, then mere children, with the consent of Des Raj. Gandharp had by his declarations in 1853 and 1855 provided cogent evidence of his own acquiescence, and had this been absent, there was the difficulty in his way that the property had been granted to Ajudhia Prasad and Budh Singh by the Government. If as there is strong evidence to show, the property was held in separate shares, the shares of the great uncles of the respondent descended as inheritance liable to obstruction, and he could not question his father's acts. For the reason that there is no proof of any fraud or collusion on the part of Gandharp Singh in entering into the compromise of 1867, the suit cannot be maintained. The appeal is decreed and the suit dismissed with costs.