John Stanley, C.J. and William Burkitt, J.
1. This case is a sequel in some respects to the case of the same plaintiffs appellants v. Abdul Qayyum decided by this Bench in April 1903, which will be found reported at I.L.R., 25 All., 546. In that case the plaintiffs sued to set aside an alienation made by their mother Rani Mewa Kunwar to her father-in-law under circumstances detailed fully in that judgment. We held in it that the plaintiffs were entitled to succeed. In that case we also detailed at length (pp. 558 et seqq of the report) the conflicting claims made by Rani Chhatar Kunwar and her sister Rani Mewa Kunwar on one side, and Raja Khairati Lal on the other to the estate of Raja Ratan Singh, who after his conversion was known by a Muhammadan name. The judgment then sets forth the compromise (p. 577 of the report) made between the opposing claimants, how the sister's took 8 1/2 annas between them, while Khairati Lal got 7 1/2 annas of the disputed estate. In that suit the villages which the plaintiffs sought to recover were situated within the 8 1/2 annas which the sisters took under the compromise.
2. The present suit is for recovery of possession of mauza Mahlpur, a village situate in the 7 1/2 annas which Khairati Lal took under the compromise.
3. The ground on which the suit is supported is that the two sisters being only limited owners and as such entitled only to an estate for life had no authority to alienate more than their life estate unless for a purpose recognized as legal and necessary by Hindu law, and that as both are now dead, the compromise is not binding on their reversioners the plaintiffs appellants, who claim, not through their mother Rani Mewa Kunwar, but as next reversioners to their grandfather Daulat Singh, son of Ratan Singh.
4. Of the many matters mooted in the Court below the learned Subordinate Judge found in favour of the plaintiffs appellants on most points, but on the 7th issue, the vitally important question in. the case, he was of opinion that the compromise in question is not an alienation that would hold good for the lifetime of Musammat Chhatar Kunwar and Musammat Mewa Kunwar only, but is a family arrangement and is binding on the plaintiffs. The argument that as Hindu females they were incompetent to make a compromise that would have the effect of permanently alienating part of the property, is based on the assumption that all the property which was then the subject of the compromise was the exclusive property of their father Daulat Singh and they held a life estate in it, and that if there wore no compromise the whole of it would have come to the present plaintiffs. The assumption is wrong.'
5. Subsequently the learned Subordinate Judge considers the effect of the Regulation VII of 1832 and of Act No. XXI of 1850, and holds that Raja Ratan Singh was after his apostasy the absolute owner of one-half the estate which up to that time he had owned jointly with his son Daulat, and that on his death it descended to his grandson Khairati Lal, son of his daughter Jiwan kunwar, from whom under various alienations the village in suit has devolved on the defendant respondent.
6. In the opinion expressed as to this matter by the learned Subordinate Judge we are unable to concur. In our judgment in the previous case we (at pp. 570 et seqq of the report,) fully discussed the moaning and effect of Regulation No. VII of 1832, and held that it did not abrogate the Hindu law as to the consequences of apostacy, but merely laid down for the guidance of the Judge a rule under which he might refuse to enforce these consequences. But it does not purport to affect the substantive law. The Hindu law remained unaltered in this respect, and we hold that under it Daulat became on his father's conversion sole owner of the property which up to that time had belonged jointly to him and his father. 'We have not heard anything from the learned advocate for the respondent which causes us in any way to alter or modify our opinion as to the consequences which ensued on Ratan Singh's apostacy. It follows therefore in our opinion that on the death of Daulat Singh in 1851, his widow Rani Sen Kunwar succeeded to a widow's estate in his property and on her death in 1857, his two daughters, Chhatar Kunwar and Mewa Kunwar, succeeded to the limited interest of a female heir in the estate. That estate they held at the time of the compromise of July 1860. It was contended that at one place in our judgment we had held that Daulat Singh took only one-half of the estate. The reference is to page 573 of the report, where we say, when discussing the effect of a severance on the joint Hindu family: Consequently if Section 9 of this Regulation No. VII of 1832 had the effect for which the learned advocate for the respondents contends, it follows that on his father's conversion and on the separation resulting therefrom, the joint family being dissolved, Daulat Singh became the sole and absolute owner of at least one-half of the joint family property, in which his interest while still joint was one-half.' But as we had already held that the Regulation had not the effect for which the learned advocate contended, and had held that on his father's conversion Daulat had become sole owner of the property which up to then had been their joint property, we are unable to understand how, in the passage just cited, we should be understood to hold that Daulat took only one-half. We held no more than that in a certain event, which in our opinion had not happened, Daulat would have taken at least one-half. As to the argument which the learned advocate for the respondent sought to draw from Act No. XXI of 1850, we consider it is sufficient to 'say that, as in our opinion Daulat Singh in 1845 had become sole and absolute owner of the whole of the estate which up to then had been the joint estate of himself and of his father, and as the Act just mentioned was not passed till 1850, some five years after Ratan Singh's conversion, it had no effect.
7. We hold, therefore, that when the compromise' was entered into between the sisters and Khairati Lal the former were owners, though probably ignorant of their true position, of the whole estate which had been of Ratan Singh at the time of his apostacy. Their position was that of limited owners entitled to an estate for life. The question now remaining for decision is--had they, as such limited owners, power to enter into a compromise by which their reversioners would be bound? The compromise by which they, or rather their guardians, for they then were minors, permitted Khairati Lal to take nearly one-half of the estate undoubtedly amounts to an alienation. The circumstances under which that compromise came into existence will be found on page 558 of the report of the case already referred to. There can be no doubt that it was a just and wise compromise, each party having a good fighting title, and was perhaps the best arrangement which could have been made. Had the parties on both sides been male heirs, it unquestionably would have bound them and their successors and reversioners. But unfortunately one party were female heirs with a limited interest. Does their act bind their reversioners? 'We regret to be obliged to hold that in our opinion the reversioners are not bound by it.
8. In the case of Imrit Konwar v. Roop Narain Singh (1880) 6 C.L.R., 76, at p. 81 their Lordships of the Privy Council lay down in clear and unequivocal language that 'it is clear that the daughters could not be bound by a compromise made by the widow under any circumstances.'
9. That case, no doubt, was one in which the widow when entering into the compromise had made good terms for herself disregarding the daughters' (her reversioners') interests. But the language used by their Lordships is general, and not confined to the facts of the case before them. It uses the words 'under any circumstances' thus laying down a general rule that a widow cannot bind her reversioners under any circumstances by a compromise. We take it to be undisputable that the law laid down in respect of widow applies equally to daughters, who, like her, are merely limited owners holding the estate for life.
10. In the case of Sheo Narain Singh v. Khurgo Koerry (1882) 10 C.L.R., 337, at p. 342 a widow sued two brothers of her deceased husband (who had got themselves recorded as owners in succession to him) for confirmation of her possession as her husband's heir. She succeeded in the first Court, but this decision was reversed on appeal. She then filed a special appeal to the Sadr Court), and while the appeal was pending there she entered into an ikrarnamah, or compromise, with the respondents by which they divided the property, each side taking a share. In a subsequent suit by reversioners after the widow's death calling in question the validity of the compromise, it. was held by the Calcutta High Court citing the case of Imrit Konwur v. Roop. Narain Singh (mentioned above) that the ikrarnamah could not be regarded as affecting the rights of those who claim to be entitled as reversioners on the expiration of the widow's life interest. The case of Jeram Laljee v. Veerbai (1905) 5 Bom., L.R., 885 was one practically to enforce a decree passed on an award, one of the parties to the submission to the arbitration having been a widow. In that case the learned Judge held that there is a distinction between a bare compromise out of Court and an award by arbitrators followed by a consent decree thereon. But I think that in the absence of authority to the contrary it would be unsafe to treat anything short of a decree in a suit contested to the end as coming within the ruling in the Shiva Ganga case.' This case shows that even a decree passed on an arbitration award may not be binding on reversioners.
11. Among the reported cases cited in the case just mentioned was that of Sant Kumar v. Deo Saran (1886) I.L.R., 8 All., 365, in which Mr. Justice Mahmood held that the rule in the Shiva Ganga case was limited to decrees fairly obtained against the widow in contested and bond fide litigation and would not apply to the compromise made in that case, which could hardly be regarded as standing on a higher footing than an alienation by the widow. A similar rule was applied in Ram Sarup v. Ram Dei (1906) I.L.R., 29 All., 239 where it was held that a decree passed against a widow on an award in a case where there had boon no trial in Court and which was based on agreement between the parties is not binding on the reversioners. In that case it was also held that an act done by the widow by which she purported to convey to third parties out of the property inherited from her husband an absolute estate amounted to an alienation.
12. On a review of the authorities we hold that a compromise made by a widow is not binding on the reversioners, even though it has been followed by a decree of Court, nor is a decree on an arbitration award, one of the parties to the submission having been a widow, and that the reversioners can be bound only by decree made after full contest in a bona fide litigation. Mr. J.C. Ghose in his book on the Principles of Hindu Law, 2nd edition, page 267, writes: 'It has been held that a decree against a widow to bind the reversioners must have been passed after full contest, and a compromise decree or a decree on an arbitration award can have no higher footing than an alienation by the widow.' But it was contended that the compromise might be defended as a 'family settlement' of doubtful claims. That contention is, we think, not sound. This subject is discussed in the leading case of Stapilton v. Stapilton 1 White and Tudor, 230. In that case dealing with what a Court of Justice has to do in dealing with a compromise, we find the words 'always supposing that ill (i.e. the compromise) is within the power of each party if honestly done,' indicating the qualification which each party to the compromise must possess. The two sisters being only limited owners, it, we think, was not 'within their power' to enter into such a compromise so as to bind their reversioners.
13. Finally we would add that there is no pretence for suggesting, nor has any such suggestion been made, that the compromise of July 1860 was justifiable by any necessity recognized by Hindu law.
14. To sum up we are of opinion that the two sisters had no more power to enter into the compromise of July 1860 than a widow would have bad. There not having been any litigation ending in a decree of Court passed after full contest, we are of opinion that in making that compromise the sisters exceeded their powers as limited owners, and that even if the compromise be regarded as a family settlement of doubtful claims, it was not within the sisters' power to enter into it so as to bind the reversioners. We, therefore, hold that the compromise is not binding on the plaintiffs.
15. For the above reasons we hold that the decree of the lower Court is wrong, and accordingly, reversing it, we allow this appeal and give a decree in favour of the plaintiffs appellants for recovery of possession of the village in suit. Appellants are entitled be their costs in both Courts. The objections filed under Section 561 of the Code of Civil Procedure fall to the ground.