1. The substantial question in this appeal is as to the legal effect of a deed, described as a deed of partition, dated 31-3-1933. That deed concerns property of which the last male owner was one Kanhaiya Lal who died on 10-6-1922. He got the property from his grandfather, Chunni Lal, under a will of 1883. He was succeeded by his mother Smt. Kadma Kuer, who died on 14-10-1937. Upon her death the present suit was filed by the plaintiff on, the allegation that he is the next reversioner of Kanhaiya Lal along with his brothers, defendants 2 to 6, and that defendant No. 1 Smt. Girjnandani Devi, widow of Gopi Nath, who was a sister's son of Kanhaiya Lal, had no right to remain in possession of the suit property. Gopi Nath died during the life-time of Smt. Kadma Kuer 13.
2. According to the plaintiff, he is not bound by the deed dated 31-3-1933, described as a partition deed and he contends that it is of no legal effect.
3. Before stating the defence, we may relate how this deed came into existence.
4. When Kadma Kuer entered into possession of the estate of Kanhaiya Lal upon his death, she applied to the Court of Wards under Section 10 of the Court of Wards Act to take over management of the estate and the Court of Wards took over management. Kadma Kuer had entered into possession not only of the property which is claimed in the present suit but also of other property of which Kanhaiya Lal was in possession and all such property had been taken over by the Count of Wards.
It appears that Kanhaiya Lal had a brother Madho Prasad, who had predeceased Kanhaiya Lal, Upon his death, Kanhaiya Lal was holding Madho Prasad's share of the property by survivorship. Maheshwari Bibi, the widow of Madho Prasad, made a claim to the Court of Wards that Madho Prasad and Kanhaiya Lal did not hold as joint tenants but had a tenancy-in-common conferred on them by Chunni Lal, their grandfather, by his will dated 27-2-1883.
The Count of Wards investigated this claim of Maheshwari Bibi and, Kadma Kuer agreeing, released half of the estate to Smt. Maheshwari, Bibi. On this, throe suits were filed, namely (1) Suit No. 30 of 3932. This was by Copi Nath who claimed to be the next reversioner upon the ground that he being the sister's son of Kanhaiya Lal had become an heir preferential to the present plaintiff and his brother, because of the passing of the Hindu Law of Inheritance (Amendment) Act of 1929.
This suit was against Maheshwari Bibi, Kadma Kuer and the Court of Wards and was based on the allegation aforesaid i.e., that he was the next reversioner and a statutory heir and he sought a declaration that the Court of Wards had no right to release half the share of the property taken over by Kadma Kuer from Kanhaiya Lal in favour of Ma-heshwari Bibi. It appears that Sehat Bahadur, one of the brothers, who fs defendant No. 3 to the present action, made an application seeking permission to intervene in that suit. The suit was, however, withdrawn by Gopi Nath. This led to the institution of two other suits, namely Suit No. 53 of 1933 by the present plaintiff and the other No. 54 of 1932 by the present plaintiff's brother, namely Hanuman Prasad, who is defendant No. 6 in the present action.
Both of them claimed to be the nearest rever-sioners alleging that the new Act did not affect the property and they sought a declaration that Maheshwari Bibi and Gopi Nath had we right of any kind as against the plaintiff regarding the property in those suits, i.e., the property of Kanhaiya Lal. Gopi Nath was a party to both of these suits along with Mahcshwari Bibi, Kadma Kuer and the Court of Wards. It appears that in the course of these two suits, two compromises were drawn up under one of which the dispute with Maheshwari Bibi was settled. One of the compromises is dated 27-4-1933. The other compromise is dated 31-3-3933, of which the terms were embodied in the decree in Suit No. 53 of 1932, and is the document which is in controversy between the parties to the suit which gives rise to this appeal. We are not concerned, in this case, with the compromise with Maheshwari Bibi because the property dealt with by that compromise is not the subject matter of litigation.
5. The plaintiff's case is that he is not bound by the compromise because it is neither a surrender, nor a family settlement; and his objection further is that inasmuch as Kadma Kuer was under a disability, because she was a ward of the Court of Wards therefore, in view of Section 37 of the Court of Wards Act, the document dated 31-3-1933, is void because it constitutes a transfer by a disqualified proprietor.
The plaintiff's case further is that the document is not eiiective as a surrender because the widow Kadma Kuer did not renounce her claim to the entire estate of Kanhaiya Lal but retained parts of' it and, moreover, it is contended that some property belonging to the estate has been left out of the deed and has not been surrendered by the widow and also that a part of the property has been conveyed by the deed to outsiders. It is, therefore, the plaintiff's ease that the deed is void. The plaintiff also contends that he is not estopped by anything contained in the deed, particularly having regard to the reservations made therein, from setting up his present claim. His contention lastly is that he can treat the deed as void, as also the compromise decree on the basis thereof.
6. On the other hand, the case of the defendants is that there was an effective surrender by the widow in favour of Gopi Nath who was the then reversioner and that, in any ease, the deed is good as a family settlement and that the plaintiff is estopped because of the deed from raising the present claim. The defendant's case also is that a compromise decree, was passed on basis of this deed dated 31-3-1933, and that the plaintiff not having claimed to have the compromise decree cancelled, there is a case of estoppel by record.
7. Evidence, both oral and documentary, was led in the court below and a large number of issued were framed. The finding of the court below is that there was a surrender by Kadma Kner affected by the deed of 1933 and the surrender made by Kadma Kuer was a perfectly valid surrender under the Hindu Law and that Gopi Nath thereby became the owner of the estate and that Gopi Nath also was bound by that deed as a family arrangement.
The court below has also held that the deed is good as a family settlement and is binding also on the plaintiff and his brothers. It has further held that the deed is not hit by Section 37 of the Court of Wards Act, because whether it is a surrender or a family settlement, there is no transfer of property effected by it. It has also been found by the court below that the plaintiff not having asked for a cancellation of the decree based on the compromise deed, that decree bars the plaintiff's present claim.
8. It is now necessary to set out the compromise dated 31-3-1933. The relevant portion thereof runs as under :
'This identure made this 31st day of March, 1933, between Musammat Kadma Kuer, widow of Mr. Brij Ratan Lal caste Kayastha, resident of mohalla Goshain Tola Allahabad city (hereinafter called the 'first party)' and B. Gopi Nath son of Mr. Gur Prasad caste Kayastha, resident of mohalla Goshian Tola, Allahabad city hereinafter called the 'second party' and B. Hanuman Prasad, Vakil plaintiff in suit No. 53 of 1932 and defendant No. 9 in Suit No. 54 of 1932 pending in the Court of the Subordinate Judge, Allahabad, Baboo Ram Charan Das, Plaintiff in Suit No. 54 of 1932 pending in the Court of Subordinate Judge, Allahabad, B. Anant Prasad Advocate, Baboo Sehat Bahadur Advocate, Baboo Mahabir Prasad, and Babu Jagmag Lal alias Jem(?) Lal (defendant in suit No. 54 of 1932 pending in the Court of the Subordinate Judge of Allahabad) all six the sons of Dewan Marian Gopal, caste Kayastha resident of Mohalla Shahrarabagh Allahabad city (hereinafter called the 'third party') hereby witnesseth as follows: whereas in Suits Nos. 53 and 54 of 1932 pending in the court of the Subodinate Judge Allahabad one of the main points of dispute is the question whether the second party or the third party is the next reversioner of Munshi Kanhaiya Lal deceased and as to which of these two parties is entitled to succeed to the property left by M. Kanhaiya Lal deceased on the death of his mother Mst. Kadma Kuer :
The first party and each party is bent upon pressing its claims and whereas the parties to this deed in order to save the worries and expenses of 3 protracted litigation and for the benefit of the Kanhaiya Lal estate and in order to finally settle all conflicting disputes and claims and also to avoid any future litigation have come to an amicable settlement and do bind themselves, their heirs, successors, representatives, transferees, assigns and each and every person on whose behalf and for whose benefit they arc entitled and competent to contract as here-under :
(1) That the First party renounces all her claims to the estate of her son M. Kanhaiya Lal deceased according to the provisions of this deed in favour of the Second and Third party, out of which the second party shall be the absolute owner and possessor of the properties detailed in List 'A' annexed hereto; and the third party shall be the absolute owner and possessor of the properties detailed in the List 'B' annexed hereto. (2) That the Suits Nos. 53 and 54 of 1932 pending in the Court of the Subordinate Judge, Allahabad shall be deemed to be compromised in terms of this deed and the parties hereto shall file in the Court an application embodying the terms of this deed to be embodied in the Decree of the Court the parties hereto bearing their own costs in the two above mentioned suits, (3) That in pursuance of and for the purpose of this deed the First and the Third party do admit and recognise Babu Gopi Nath, the Second party to be the son of Mst. Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Mussammat Kadma Kuar the First party and similarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal, a great-grand-son of M. Lalji, the great-grand father of M. Kanhaya Lal as per pedigree set up by them in Suits Nos, 53 and 54 of 1932 referred to above.
Provided always that if the rights of the second or the third party to the ownership and possession of their respective properties as detailed in List 'A' item Nos. 1 to 6 and seven and in List 'B' items Nos. 1, 2, 4, 5 and 8 respectively are ever questioned they shall not be precluded from setting up any claim, right or title, propositions of law or fact consistent or inconsistent with the recital of this deed, and if the rights of ownership or possession of the second party to item No. 6 in the List 'A' annexed hereto or the lights of ownership or possession of the third party to items Nos. 3, 6 and 9 in List 'B' annexed hereto are ever questioned they shall only be entitled to set up claims only consistent with the terms of this deed.
(4) That in pursuance of this deed the First and the third party do further hereby recognise the fact of Babu Gopi Nath the second party, being the absolute and sole owner of the 'pucca' nouses Nos. 62, 62A and 62B built on plot No. 60/62 on the Hewett Road, Allahabad city opposite the Pearl Picture Palace over which he has been exercising the rights of ownership and possession ever since the construction of the houses and purchase of the site in 1916.
(5) That it has also been agreed that the first party shall remain in actual occupation of the residential house and the land appurtenant thereto situated in Goshain Tola Allahabad city coloured green in the sketch outline map annexed hereto for her life without any interference from the second or the third parly and that after her death and the termination of her funeral ceremonies the third party shall become entitled to enter into absolute proprietary possession over the portion marked green in the map annexed hereto; Provided firstly that a portion of land six feet in width marked ABCD and left white in the map annexed hereto shall be left vacant the same belonging to no particular party but the latrine projections doors and windows appurtenant to the house shown in green remaining intact and the parties to this deed shall exercise all sorts of easements on this portion and if the second party ever makes any construction on his land to the east of the portion marked ABCD in the map attached hereto he shall be entitled to open out his doors and windows on the aforesaid portion A.B.C.D. and shall have a right of way through this portion, provided secondly that when the third party comes into actual occupation of the residential house as per terms of Clause 5 above they shall block up all doors and windows on the ground floor of the aforesaid house opening out towards the south of the house on the red portion of the land in the maps annexed hereto belonging to the second party, and the third party shall not be entitled to any right of way towards and on the aforesaid portion of the land of the second party.
(6) That it has further been agreed between the parties to this deed that all the loans payable to the Court of Wards, Allahabad for the release of the estate at the time of such release shall be paid half by the second party and half by the third party and if any further sum is found later on legally recoverable from the Kanhaiya Lal estate by the Court of Wards, Allahabad or by any other person the party to this deed agree that the same shall be paid half by the second party and half by the third party.
(7) That it has also been agreed between the parties to this deed that the gold and silver ornaments, utensils and other movables in the custody of the Court of Wards, Allahabad shall be at the absolute disposal of the first party who shall receive the same from the Court of Wards, Allahabad and shall be the absolute owner thereof.
(8) That the first party shall remain in do facto management of Arrah Kalan property for her life without any interference from the second or the third party to whom she shall in no case be liable to render any accounts and that after her death the second party or his heirs, representatives, assigns or transferees and Babu Sehat Bahadur, Advocate, Allahabad as representing the third party or their heirs, representatives, assigns or transferees shall manage and enter into possession of the said village Arrah Kalan jointly.
(9) That Musammat Maheshwari Bibi wife of B. Satya Narain Prasad set up certain rights regarding the Arrah Kalan property but the alleged rights were denied by Musammat Kadma Kuer, the first party, who has been the de facto manager and exclusive possessor of the said property as the sole heir of her son the late M. Kanhaya Lal and moreover the alleged rights if any of the said Musammat Maheshwari Bibi have been extinguished on account of lapse of time. Under these circumstances the parties to this deed do hereby make it clear that they do not in any way admit the rights of the aforesaid Musammat Maheshwari Bibi to enter into possession or to manage the Arrah Kalan property at any time in any capacity whatsoever and that whatever may have been stated in the agreement between the said Mst. Maheshwari Bibi and the third party as far as the Arrah Kalan property was concerned the parties to this deed agree that it shall have no binding effect on any of the parties to this deed so far as this Arrah Kalan property is concerned and it shall not create or confer any right in Mst. Maheshwari Bibi in respect of this property.
(10) That the Court of Wards, Allahabad as a condition precedent to the release of the estate from, its superintendence demands a certain amount of money from the first party and in that amount it includes a sum alleging that it has to be paid to Musammat Maheshwari Bibi on account of certain alleged claims by the said Mst. Mahpshwari Bibi but the parties to this deed contend that no such! sum is legally due to Mst. Maheshwari Bibi and she is not entitled to the sum she claims but if it is thought advisable and in the interest of and for the benefit of Kanhaiya Lal estate that the estate should be got released from the superintendence of the Court of Wards, Allahabad and if for that purpose the second and the third party on behalf of the first party and as representing the Kanhaiya Lal estate in accordance with the terms of this deed have to pay the amount referred to above or any other amount which in their opinion is not legally due from or binding on the Kanhaiya Lal estate, the parties to this deed agree that the amount so demanded by the Court of Wards, Allahabad shall be deposited with it under protest but the parties to this deed reserve to themselves the right to have the validity and the binding nature of any such so-called debt determined by a Court of competent jurisdiction and claim the refund of the amount from the Court of Wards, Allahabad or from the person who gets the same from the Court of Wards, Allahabad.
(11) That the temple of Sri Thakurji and Sri Jalipa Devi shall be managed by the second and the third party jointly and equally and no party to this deed shall be entitled to make any changes in the construction of the temples, and the verandah and open court yard in front of the temple.
(12) That it has further been agreed between the parties to this deed that house No. 170 situated in Mohalla Shahrarabagh at present in the occupation of M. Raj Kishore son of M. Nand Kumar Lal will henceforth be the absolute property of the said M. Raj Kishore and the parties to this deed shall not have any concern whatsoever with this property.
(13) That suit No. 230 of 1921 in the Court of the Subordinate Judge of Allahabad had been filed by one M. Kanhaiya Lal against Musammat Kunjlas Kuar and others and it was got dismissed but the limitation for redemption has not vet expired and it is necessary to file a suit for redemption of the property referred to in the plaint of the above mentioned suit, the parties to this deed therefore agree and bind themselves that the right of redemption shall henceforth rest in the second party and the third party and they shall be entitled to get this property redeemed but if in order to save unnecessary objections from the mortgagees it: is considered necessary that the first party should also join as co-plaintiff in any suit for redemption that may be filed then the first party will accordingly join as plaintiff and the expenses of such a suit shall be borne by the second and third party half and half.
14. That it has been agreed that immediate effect be given to this deed and that each party do obtain effective and actual possession over their respective properties according to this deed and that the mutation of names be effected accordingly, provided always and it is hereby agreed that whenever such an interpretation would be requisite in order to give the fullest scope and effect legally possible to any covenant or contract herein contained the expression 'The first party', 'The second party' and the 'Third party' hereinbefore used shall include all persons and heirs, successors, representatives, transferees and assigns of each and every person on whose behalf and for whose benefit the first party, the second party or the third party is entitled to contract or accept the benefits of a contract whether such persons are named herein or not
In witness hereof the parties hereto set their hands this day the 31st day of March, 1933, on this partition deed. Annexure, List 'A' properties to be owned by the second party absolutely : (1) pucca houses Nos. 62, 62A and 62B on plot Nos. 60/62, Hewett Road, Allahabad city, opposite the Pearl Picture Palace, (2) Garden land and 'kachcha' house adjoining the residential house of the first and the second party in Mohalla Goshain Tola, Allahabad! city as per portion coloured red in the sketch outlined map attached hereto, (3) House No. 169 in Mohalla Shahrarabagh at present in the occupation of Bulaqi Kalwar. (4) House situated in Mohalla Shahrarabagh at present in the occupation of Musammat Chaurasi and the Patti land lying to the north and behind tin's house, (5) House No. 171 situated in Mohalla Shahrarabagh at present in the occupation of Mathura Lonia, (6) Half of the property of Munshi Kanhaiya Lal situated in Mohalla Mohtashimganj in the occupation of weavers etc., (7) The following villages of Kanhaiya Lal's estate........'
9. We will now deal with the objection that is being raised in connection with the surrender, viz., that Kadma Kuar did not surrender the entire estate but retained an interest in some part of it.
House No. 1. Goshian Tola.
10. The Court below has discussed the position in regard to this house. The finding of the Court below that a sankalp of this house was made by Smt. Kadma Kuer on the 17th day of Kanhaiya Lal's death in favour of his purohit and that a duly registered sankalp deed was executed has not been disputed before us. We agree with the view of the Court below that this transfer by Kadma Kuer would be perfectly valid and binding. Indeed, this has not been disputed before us. Therefore, there was no question of a surrender of this house No. 1, Goshain Tola, because it had ceased to be a part of Kanhaiya Lal's estate even before the surrender in question.
2. Some groves in village Kutwa, Jamnipur and Sarai Mansur.
11. The view of the Court below is that there may have been some small groves which have not been included in the deed but its view further is that the groves constitute such a small part of the property that the failure to mention these in the deed in question is unimportant. We were taken through some evidence in order to establish that there were some groves belonging to Kanhaiya Lal and it was contended that the Court below was wrong in thinking that the groves in question did not really exist. We find that the total area of these groves is not much beyond ten to fifteen Bighas it the utmost. The Court below has pointed out that in the suit of 1932 in which this compromise decree was effected the groves had not been specifically shown in the schedules. In the evidence given in Court by Sri Sehat Bahadur, a witness for the defendant, he seemed to have very little knowledge about these groves and he admitted that he had come to know of the existence of some of them after the deed of compromise. Where large Zamindari properties are involved, the omission of a very few small items would not, in our view, affect the validity of the surrender. It appears clearly that these items were omitted by sheer oversight. We are supported in this view by the decisions in Smt. Brojeshwari Dassi v. Monoranjan Dutta 0044/1936 : AIR1937Cal167 , and Haribhai Nanaji v. Narayan Hari, reported in AIR 1938 Bom 438.
12. The same considerations would apply to any omission of stray trees or to a stray one Bigha of land even if the title of Kanhaiya Lal in these is taken to be fully established.
13. In regard to the retention of movables by the lady, they were valued at the outside at Rs. 500/- and considering their nature, they were that; sort of articles the retention of which could be justified on the basis that a widow could retain reasonable property for her maintenance They are mostly articles of furniture and other domestic articles of very small value. Moreover, it must not be overlooked that under the deed itself, the articles were retained by agreement by the widow and were to remain at her absolute disposal by consent.
Mauza Arrah Kalan property.
14. On behalf of the plaintiff it is said that Arrah Kalan property was the property of Kanhaiya Lal. On behalf of the defendants it is asserted that it was waqf property. That Arrah Kalan property was the property of Chunni Lal, the grandfather of Kanhaiya Lal, cannot be disputed. By the will dated 27-2-1883, whereby he bequeathed his other property to Kanhaiya Lal and Madho Prasad, his grandsons, he also confirmed that Arrah Kalam was dedicated property. Paragraph 5 of the will runs as follows :
'Out of my property, I have dedicated Mauza Ara Kalan, Fergana Meh to Sri Thakurji, who is installed in the 'Thakur Dwara' built by me, adjoining my residential house. The persons in whose favour the will has been made shall look to the management thereof and arrangements for cultivation, collections, the expenses of 'Thakur; Dwara', and the appointment of 'Pujari'. They shall also like myself, have power to change the 'pujari' at the proper time.
Out of the income of the said village, whatever profits shall accrue after payment of Government Revenue, the pay of servants of the village and village expenses, shall be utilised in paying the salary of the servant of the temple, and in meeting the expenses of daily 'Bhog' and 'puja' of Thakurji, the expenses relating to 'Janam Ashtmi Ram Naumi etc., the repairs of the said temple and ether necessary and unavoidable expenses, relating thereto. But the said village has been made 'waqf' of by reason of its being dedicated to Sri Thakurji.
It is beyond the power of every sort of every person. In the department of Government, the mimes of the persons, in whose favour the will has been made and of their heirs and representatives shall always be recorded, with a note as regards the said village having been made 'waqf of and dedicated to and as belonging to Sri Thakurji. But the persons in whose favour the will has been made and their heirs and representatives shall always exercise all such powers in respect of the temple as have been enjoyed by me upto this lime.
Any interference on the part of any one else shall not be valid. Similarly the persons in whose favour the will has been made and their heirs and representatives shall always without any objection on the part of anyone, have powers of all sorts, as regards settlement, collections, payment of Government Revenue and the arrangements for the expenses of Thakurji, as 'Gumashta' of Sri Thakurji, having power and the 'waqf property aforesaid shall never pass out of the possession and control of the persons, in whose favour the will has been made and of their representatives.'
On behalf of the plaintiff it was said that there was no evidence to show that Arrah Kalan was treated as waqf property, that there was no entry in any revenue record wherein Arrah Kalan was entered as 'waqf', nor were there any accounts showing that the profits of Arrah Kalan had been spent for the purposes of the waqf.
15. Learned counsel took us through the revenue papers including Settlement entries. It is correct that such papers as are on the record do not show that the property has been entered as temple property. Learned counsel also pointed to certain account-books wherein income from Arrah Kalan was shown not separately but along with the income of the other property comprising the estate. It is true that no accounts have been filed by the plaintiff to show that any account of income or expenditure in respect of Arrah Kalan was separately maintained and there is no written proof that any part of the income of Arrah Kalan was expended for the purpose of the temple.
It was argued by learned counsel that what had to be shown was that not only a deed of dedication had been drawn up but that there was a divestment of property by the owners and, in this connection we were referred to the decision in Mt. Abadi Begum v. Ml. Bibi Kaniz Zainab , where it was pointed out that a change in the revenue record was good proof of the divestment. Cases were also referred to us as for instance, Murngesam Pillai v. M. D. . Gnana Sambandha Pandara Sannadhi. ILR 40 Mad 402: (ATR 1917 PC 6), on the point that inference may be drawn from non-production of accounts that the waqf was not acted upon. If the matter had stood there we have no doubt thai we would have had to hold that no waqf was established in this case. But it must not be overlooked that the waqf was created by the will of 1883 and this suit was filed in 1939.
Oral evidence of whether Kanhaiya Lal used the income of Arrah Kalan for the purposes of the? waqf would he difficult to obtain. There is no definite or reliable evidence to show that he maintained account hooks which passed to Kadma Kuar. It is not unusual for persons, who get into possession after the creator of a trust has died, to try and nullify the waqf and to bring its income to their own use but presumably if the founder has followed up the dedication and the creation of the trust by using the income of the dedicated property for the purposes of the waqf even for a short time then subsequent failure to carry out the terms of the waqf or breach of trust thereafter would not destroy thevalidity of the waqf'. 1
The important point is that not only must there be an intention to divest evidence by a deed but divestment must be shown to have taken place. Mutation of name is such proof of divestment and appropriation of income would also constitute such a proof. But that the waqf was acted upon may be proved in other ways also. In this case the position is that the plaintiff who is now asserting that no waqf came into existence has quite clearly, by the provisions relating to Arrah Kalan contained in the document of 1933 on the basis of which the decree was passed, admitted that Arrah Kalan was a waqf property. That is the last admission by him.
That admission has to be kept in mind in exa-mining his present case that the dedication was not given effect to. Moreover, in this case it is manifest! from the evidence of the defendant Mr. Sehat Bahadur, who is also one of the co-reversioners with the plaintiff, that the waqf was given effect to by Chunni Lal and even subsequently. Sehat Bahadur's evidence at page 45 of the paper-book reads as under :
'..... Arrah Kalan was taken over by the Court of Wards for sometime but ultimately given up and continued subsequently to be in possession of Kadma Kuer. The expenses over temples were made by Kanhaiya Lal in his lifetime. After that Kadma Kuer used to make these expenses after obtaining money from the Court of Wards upto the date of release by the Court of Wards. She sometimes used to spend out of her maintenance. The usual expenses have almost throughout been about Rs. 700/- per year. No regular 'Sadabart or Bhan-dara' was maintained by Kanhaiya Lal. There was no separate ear-marked property for the expenses of these temples. The property, Arrah Kalan, was wrongly noted as waqf and treated as such for the purposes of the compromise of 1932 on the wrong suggestion of B. Gopi Nath. I had not given any particular attention to this fact. Gopi Nath was taking active interest in it. I can give no reason why even in the compromise of 1933, this proprietary right in respect of this property was not specifically mentioned.'
16. It will be clear from the above evidence that expenses over the temples were met by Kanhaiya: Lal in his lifetime and after that Kadma Kuer used to make these expenses. The statement of the defendants' witness, Kalapraj Singh, also shows that celebrations were held and money was spent. This is what he says in his evidence at page 33 of the printed paper-book :
'I have seen the Wakfnama of Arrah Kalan. This waqf was made only through will of Chunni Lal which is on the record. The net profits of Arrah Kalan should be about Rs. 3,000/-. I cannot give the details of the income. Accounts of the income of that village are kept by the defendant No. 1 and were also kept in the time of Gopi Nath. The accounts must be with the defendant No. 1. The Court of Wards had first taken possession of the property of Arrah Kalan but when they found that it was waqf property they gave it up. The Pujari of the temple was getting Rs. 6/- or 7/- a month and he was getting his food also.
There were some celebrations on two festival occasions. On each of these two occasions there is an expenditure of Rs. 200/- or 300/- (again said) that sometimes the expenses run to Rs. 500/- or 600/-when some 'Ras' (dramatic performance) is arranged. The accounts of the expenses over this temple are kept by the defendant No. 1. Kadma Kuer also used to keep accounts of these expenses. Some of these registers are with the defendant No. 1. The defendant has got no accounts of the time of Kanhaiya Lal in respect of this temple. There were no other expenses of the Thakurdwara except those mentioned by me above. The other expenses were incurred by Kadma Kuer over charities.''
It is true that no accounts have been produced; but it is also evident that even at the stage of evidence parties were agreed that money was being spent in connection with temple. Having regard to this fact and from the admission in the compromise deed of 1933, it seems to us to be futile for the plaintiff to say that the waqf was not acted upon. In our view, inasmuch as expenses have admittedly been incurred in connection with the temple, it is legitimate to infer that the income of property which had been made a waqf of was drawn up whenever expenses were incurred in connection with the temple rather than to infer that money came out of property other than Arrah Kalan. Merely because separate accounts have not been maintained or filed to show that the expenses, which were incurred, were met from the profits of Arrah Kalan should not lead to the conclusion that the temple expenses were met out of non-waqf property and particularly because it is evident from the deed of 1933 that it was accepted that Arrah Kalan was a waqf property.
17. Learned counsel drew our attention to the plaints in the suits referred to earlier where the property of Arrah Kalan was alleged as a part of the estate of Kanhaiya Lal by both the plaintiff and by Gopi Nath. In our view, the claim so made has no conclusive effect, particularly in view of the position taken up in the compromise of 1933 which was subsequently effected in the suit of the plaintiff. Arrah Kalan thus being a waqf property, there was no question of surrendering the same. In this connection, we may note that an argument was advanced that in retaining the right of de facto manage-ment of Arrah Kalan, the widow Kadma Kuer had failed to surrender a pant of the estate of Kanhaiya Lal. Once a waqf came into existence, the property dedicated would no longer be a part of Kanhaiya Lal's estate and the shebaitship of that property, although it may be a property in itself, could not be the property of Kanhaiya Lal.
Kanhaiya Lal had a right in his life time to act as a shebait and thereafter he had no interest therein left to pass to his mother. Kanhaiya Lal passed no interest in the shebaitship to Smt. Kadma Kuer which she was called upon to surrender. It seems to us, upon a consideration of the deed of 1933, that the present plaintiff and Gopi Nath were fully aware that on the date of the deed Arrah Kalan property was fully impressed with the trust that it was a waqf propertv and it appears that it is for that reason that they allowed the lady to retain the management thereof and after her death they declared that they would be the managers. Kadma Kuer also bona fide considered Arrah Kalan to be dedicated property.
18. It was nest contended that there was a failure to surrender Raj Kishorc's house and it was urged that that house was P^ut of Kanhaiya Lal's estate. It seems to us fairly evident that Raj Kishore must have been putting up claim to the house and if, in those circumstances, the widow accepted his claim to that house, that would not make the surrender any the less effective. See Challa Subbiah Sastri v. Palury Pattabhiramayya, reported in ILR 31 Mad 446.
House Nos. 62, 62-A and G2-B on Hewett Road, Allahabad.
19. It was urged that the widow had not surrendered the above houses. The finding of the Court below is that these houses were the personal property of Gopi Nath, Relating to these houses, the contention of the appellant was that the Court below is wrong in coming to the conclusions that the houses were the personal and self-acquired property of Gopi Nath himself. The case set up in evidence by the plaintiff was that the land on which the house was built was purchased Benami by Kan-haiya Lal in the name of Gopi Nath and that the houses were constructed out of the funds of Kanhaiya Lal. It was said that Gopi Nath had never any sufficient funds of his own to be able to construct these houses. (After discussing the evidence in paras 19 and 20 the judgment proceeded.)
21. At the time of the compromise of 1933 this house has been definitely treated as the house of Gopi Nath. We are not at all satisfied that it has been established that Gopi Nath could not have had funds of his own or previous funds from gift made to him or ancestral funds sufficient to meet the costs of this construction or to substantially meet the costs of these constructions with some assistance from the uncle.
22. In our view, therefore, this document of 1933 is not invalidated by virtue of the alleged infirmity that items of property hereinbefore indicated were not surrendered.
23. It is next evident on the very face of this deed that this was not a device to divide the estate between the widow and the next reversioners. No doubt the widow has reserved a small part of the estate for herself by way of maintenance, but the mere fact that a widow makes reasonable provisions-for her maintenance would not make the surrender invalid. After all. all that she has retained is the right of residence and she has retained household goods of small value. A reasonable provision by way of maintenance may be reserved by the widow or other female owner and the validity of the surrender, if in other respects unobjectionable, is not affected by such retention.
There is a stream of cases which establish this and which ate noted in Mayne's Treatise on Hindu Law and Usage, Eleventh edition, at page 788, footnote (v). It is not necessary to analyse those cases in this judgment, because no useful purpose will be served particularly as in view of recent legislation which has enlarged a widow's estate into an absolute estate, the questions in regard to surrender will tend to become increasingly of mere academic value. But we may mention the case reported in Rama Nana v. Dhondi Murari, ILR 47 Bom 678 : (AIR 1923 Bom 432), dissenting from Adivcppa Nagappa v. Tontappa Tippanna, ILR 44 Bom 255 : (AIR. 1920 Bom. 345), as an example which supports the statement of law hereinbefore made.
24. In this case we think that the widow has surrendered, save that she has retained by way of maintenance, the entire estate which it was open to her to surrender and even if some portion of the property has been omitted either because the widow, bona fide did not know that it was pant of the estate or because she allowed it to pass out of the estate under a bona fide belief that it did not really belong to her husband that would not render the surrender invalid. See Krishnavenamma v. Hanumantha Rao : AIR1933Mad860 , Dharma Rao v. Veeriah. : AIR1945Mad274 : (AIR 1937 Cal 567) and ILR (1938) Bom 723: (AIR 1938 Bom 438).
25. But a more basic objection has been raised as against the validity 6f the surrender. It was contended that upon a plain reading of the deed of 1933, it was evident that Mst. Kadma Kuer was not surrendering the estate only to the nearest reversioner Gopi Nath, but she was also surrendering a moiety thereof to the more remote reversioners, namely the plaintiff and his brothers, the other defendants, in this case. It was argued on the authority of a judgment of their Lordships of the Supreme Court reported in Mummareddi Nagi Reddi v. Durairaja Naidu : 2SCR655 , that inasmuch as the surrender was both in favour of the reversioner and in favour of the remote reversioners, it could not operate as a valid surrender.
On the other hand, it was contended that the deed of 1933 was not a unilateral document of surrender solely by the widow, but was a tripartite document to which both Gopi Nath the immediate reversioner, and the plaintiff and his brothers, the remoter reversioners were parties and it was said that the effect of the document in the first instance was that the widow had surrendered the estate to the nearest reversioner Gopi Nath and that thereafter Gopi Nath had conveyed half the estate to the plaintiff and his brothers, the remoter reversioners. It is true to quote the language of their Lordships of the Supreme Court that :
'It would be quite consistent with established principles of law if the widow relinquishes her interest in the husband's estate and the reversioner in whom the estate vests transfers the estate either in whole or in part to another person. If the transfer is of the entire estate the two transactions may be combined in one document and the widow and the reversioner might jointly transfer the whole estate to a stranger but the implication in such cases must always be that the alienee derives his title from the reversioner and not the widow.'
The deed of 1933 in question, however, does not fulfil this requirement, because clearly the widow renounced all her claims to the estate of her son Munshi Kanhaiya Lal deceased according to the pro-visions of the deed in favour of the next reversioner and the remote reversioners, and specified what property each was to hold out of the surrendered property. This deed is not the case of a deed where there is a surrender first by the widow to the nearest reversioner and then a transfer by the said reversioner to the more remote reversioners by the same deed, nor does this deed show that the widow and the next reversioner have jointly transferred the property to another person.
Even though this document is not unilateral but tripartite, in our view, it cannot be read as a surrender to the nearest reversioner only and a transfer by rem of the half share which the widow surrendered to the remote reversioners. Mt. Phool Kuer v. Mt. Pem Kuer, : 1SCR793 , was also a case where a surrender was made in favour of the next heir with whom a remote reversioner was associated and the widow purported to relinquish the estate in order that it may vest in both of them and it was held that : 'the surrender not being of the totality of the interest of the widow in favour of the next heir cannot operate as a valid surrender and the relinquishment cannot in law operate as an extinction of her title to the estate.'
No doubt when a widow surrenders, she effaces herself and the surrender does not constitute a transfer of her husband's estate by her. Once she brings about her civil death, she has no disposing power left. But she cannot both efface herself and yet by her action directly give an estate to a person other than the next reversioner and call it a surrender according to Hindu Law. It is true that in this case there might have been created doubt as to which of the two, Gopi Nath, or the plaintiff and his brothers were the nearest reversioners. None-the less, the widow had to make up her mind as to who was the next reversioner and she had to surrender to the next reversioner.
She cannot be permitted to say that since by their plaints Sehat Bahadur and his brothers raised doubts as to which of the two sets of reversioners were the reversioners, she surrendered in favour of both. Moreover, here it is not a case of surrender in the alternative either to A or to B, whoever may be the reversioner but there is a surrender to two sets of reversioners, the nearer and the more remote. Therefore, we are of the view that upon this ground the surrender must be declared to be invalid. .
26. The next question which arises is whether the deed of compromise dated 31-3-1933, operates as a family settlement binding on the parties. The Court below has held it to be a binding family settlement. It is necessary at this stage to recall that the deed of 31-3-1933 refers to the fact that suits are pending inter partes and that one of the main points of dispute is the question whether Gopi Nath or the present plaintiff and his brothers were the next reversioners of Munshi Kanhaiya Lal deceased and as to which of the parties were entitled to succeed on the death of Mst. Kadma Kuer. It is stated in the document that
'The first party (that is, Kadma Kuer) and each party (that is the two set of reversioners) is bent upon pressing its claims and 'whereas the parties to this deed in order to save the worries and expenses of a protracted litigation and for the benefit of the Kanhaiya Lal estate and in order to finally settle all conflicting disputes and claims and also to avoid any future litigation have come to an amicable settlement,'
they bind themselves by the settlement. Since there is a reference to the plaint of Suit No. 54 of 1932 in this deed, one may turn to it. In that plaint obviously the right of Kadma Kuer to represent her husband's estate for the purpose of admitting the claim of Musammat Maheshari seems to be challenged upon the ground, inter alia, that Kadma Kuer is an old lady of feeble intellect and also on the ground of collusion. Also the will of 1883 of Chunni Lal which was the root of the title of Kanhaiya Lal whose mother was Kadma Kuer was challenged and it was said that that will was legally invalid. It was also said that the properties mentioned in the will were not the separate and self-acquired properties of Chunni Lal and he had no right to execute a will in respect of those properties.
Then it is said that the will was not given effect to and on the death of Munshi Chunni Lal his two grandsons Babu Kanhaiya Lal and Babu Madho Prasad did not themselves enter into possession in the capacity of legatees, nor did they apply for mutation as legatees. It is then said that Munshi Kanhaiya Lal and Babu Madho Prasad accepted and treated and agreed to hold the property as joint Hindu family property and that thus according to the will the rights of Babu Madho Prasad could pass only to the other joint tenant or coparcener, viz., Babu Kanhaiya Lal. Thereafter it is said that the will does not relate to all the properties and cannot under any circumstances affect the properties not mentioned therein.
From the plaint it is not quite clear what is meant by suggesting that the properties mentioned in Chunni Lal's will were not the separate or self-acquired properties of Chunni Lal. Munshi Lal was the father of Chunni Lal and Deoki Nandan from whom the plaintiff and the defendants 2 to 6 descend. When it is said that the property mentioned in the will was not the separate or self-ac-quired property of Chunni Lal, is it implied thereby that it came from Munshi Lal and that Deoki Nandan as well as Chunni Lal had rights in it? Then it is said that the will does not affect properties not mentioned in it and does not relate to all the properties. This seems to question the right or Kadma Kuer to hold all the properties she held even during her life-time.
It is true that the declaration that is sought in the suit is to the effect that Maheshwari Bibi or Gopi Nath has got no right or interest of any kind regarding the property in suit as against the plaintiff who is entitled to the properties in suit on the death of Musammat Kadma Kuer as the next rever-sioner of Babu Kanhaiya Lal, This would no doubt seem to suggest that Mussammat Kadma Kuer's title to remain in possession was not being questioned in the suit, but the relief for declaration is claimed against Maheshari Bibi and Gopi Nath and although it is true that Kadma Kuer is also impleaded, it is not at all unlikely that the plaintiff Ram Charan Das of that suit, who is also the plaintiff here in this suit, was disputing the very basis of Chunni Lal's rights and have been contemplanting some further step against Kadma Kuer in case she did not accept his claim.
Moreover, it is to be noted that in paragraph 11(a) of the plaint he took up the position that Gopi Nath was setting up himself wrongly as the sister's son of Babu Kanhaiya Lal whereas he is in fact the son of Babu Kanhaiya Lal's sister's son by another wife.' The widow was naturally interested in seeing that her daughter's son was not defamed. 'The possibility of dispute existing regarding Kadma Kuer's rights is not therefore ruled out and the deed recites that she was pressing her rights in common with the other parties to the deed. Even so it is said that there could be no family settlement in this case because there was no dispute or competing title so far at least Mst. Kadma Kuer was concerned. It is, however, not denied by the plaintiff that as between the second and third parties to that deed, there was a competition of title.
27. The question to be decided is what is the exact nature of a family settlement. In this case it has already been pointed out that suits were pending in the courts. Two groups of persons were fighting for the expectancy. The mother Kadma Kuer was in possession and the person who claimed to be the next reversioner was her daughter's son. The other reversioner denied the latter's right and as already indicated, even denied the validity of the will whereunder Kanhaiya Lal had got the estate. In view of the allegations that Gopi Nath was not the sister's son of Kanhaiya Lal, Kadma Kuer was likely to fight the litigation as was Gopi Nath. The net result of it would have been that the peace of the family would have been disturbed. In order to preserve the peace of the family and the avoidance of disputes and litigation and to save the honour of the family this deed of settlement was obviously entered into. Halsbury's Laws of England, 2nd Edition by Lord Hailsham (Volume XV, page 2), has defined a family arrangement as
'a transaction between members of the same family which is for the benefit of the family generally, as, for example, one which tends to the preservation of the family property, to the peace and security of the family and the avoiding of family disputes and litigation or to the saving of the honour of the family.'
Though Gopi Nath was a daughter's son, he was for the purposes of the reversion a member of the family of Kanhaiya Lal. A family arrangement to be good need not necessarily be a compromise of doubtful rights. (See Williams, v. Williams, (1867) 2. Ch.A 294. It has been ruled in this Court in Pokhar Singh v. Mt. Dulari Kunwar : AIR1930All687 that
'For a family arrangement to be good it is not necessary that there should be a family dispute which has to he settled or composed. A family arrangement to be good need not necessarily be a compromise of doubtful rights' ... It is enough that it secures the preservation of the family peace.'
In this case it is to be noted that there is an admission by Kadma Kuer that the third party to the deed are the sons of Diwan Madan Gopal. Therefore, consideration passed from her also.
28. Against the view laid down in Pokhar Singh's case : AIR1930All687 the case reported in Mittar Sain v. Data Ram : AIR1926All194 was cited, and it was argued on that basis that there must be a settlement of doubtful claims. This case was dissented from in the case earlier cited. Our attention was invited to the case of Wajid Ali v. Gangadin AIR 1938 Oudh 97, where it was held that :
'The essence of a family arrangement is a mutual recognition of a pre-existing right of the parties to the settlement.'
And it was observed that,
'Where one party is admittedly the sole owner of property, there can be no family settlement about it between him and other parties and that if he relinquishes his rights in such property to other parties, the arrangement amounts to transfer by gift and must be registered according to Section 123 of the Transfer of Property Act.'
This case takes, with all respect, far too narrow a view of a family settlement. In the Full Rench case of Mst. Dasodia v. Gaya Prasad, reported in : AIR1943All101 , it has been clearly laid down that :
'The existence of a family dispute is not essential to the validity of a family arrangement nOR is the existence of a doubtful claim based on the allegation of an antecedent title essential for the validity of a family arrangement so as to make it binding upon the parties thereto. Such arrangement may bind the parties to it if it is for the benefit of the family or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property. But there must be some kind of consideration before an agreement in respect of the division of family property can be held to be a valid family arrangement though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety.'
29. Collister J. refers to Pokhar Singh's case : AIR1930All687 and points out that it was cited with approval by the High Court of Calcutta in two later cases. The learned Judge approves of Pokhar Singh's case : AIR1930All687 .
30. In our view, therefore, even if it be taken that the title of Kadma Kuer was not in dispute, this family settlement would be binding on the parties as tending to bring harmony in the family, We have already indicated that upon the pleadings in Suit No. 54 of 1932, it was not quite clear as to what the plaintiff was aiming at when he questioned the will and whether or not he was prepared for some further litigation with Kadma Kuer. Twelve years had not expired since the death of Kanhaiya Lal when Suit No. 54 of 1932 was filed.
31. In regard to the objection that the transaction in question really amounts to a dealing by the reversioners with their spes successions and is bad, being prohibited by the Transfer of Property Act, Section 6(a), it has only to be pointed out that the true nature of a family settlement is that it does not involve any sort of transfer. The converting of an expectancy to a certainty and avoiding chance of litigation in future is good consideration for a family arrangement : (see Uma Shankar v. Ram Charan. : AIR1939All689 , and : AIR1930All687 In regard to the objection that properties have been transferred to strangers, there is really no transfer in this case but the ac-ceptance of the right of Raj Kishore to remain in possession of the property only and to hold it absolutely.
32. The next question which was debated before us is whether the plaintiff is barred from repudiaring the deed of 1933 by the principle of estoppel, and whether the plaintiff and the defendants Nos. 2 to; 6, his brothers, being paries to the deed can, now that the reversion has opened to them, challenge the deed. In this case there is no doubt that the plaintiffs and the defendants 2 to 6 have been greatly benefited by the compromise. In 1933 when the compromise was entered into, they were not the next reversioners. It is evident from her conduct in executing the deed of 3933 and reading into the spirit of that document that Kadma Kuer was desirous of surrendering her estate in favour of Gopi Nath and so he would have been enabled to enjoy the property as owner even while she was alive though notionally dead.
She was well over eighty years of age and if! is evident that she was desirous of accelerating the estate and it is only because the plaintiff and his brothers, three of whom were lawyers, asserted that they were the immediate reversioners of the last male holder and despite the Act of 1929 were still heirs preferential and would thus be the beneficiaries of the surrender which she clearly contemplat-ed, that she and Gopi Nath accepting their assertions agreed to enter into a family settlement with therm Gopi Nath worsened his position in this sense that he was thus content to retain half the property instead of his taking a surrender of the whole which the widow undoubtedly would have been willing to give him, as he was her daughter's son.
Gopi Nath changed his position in this way that he did not obtain what he could have obtained from the widow, namely, a surrender of the whole estate in his favour and he contended himself with half the estate of Kanhaiya Lal. Now that Gopi Nath is dead the plaintiffs to whom the estate has opened cannot be permitted to say that at that time they had no title and could not enter into a compromise with Gopi Nath as owners. We arc there-tore clearly of opinion that the principle of estoppel is applicable under the circumstances. The plaintiff and defendants 2 to 6 his brothers having been parties to the deed cannot now challenge it. We do not think that the so-called reservations in the deed help them.
33. The next contention raised was that the family settlement offended against Section 37(a) of the Court of Wards Act. That section places a disability on wards and prohibits them to transfer or create any charge on, or interest in, any part of the property which is under the superintendence of the Court of Wards or to enter into any contract which may involve them in pecuniary liability. In our view there is no question of a transfer or of the creation of any charge or interest in this case. The true nature of a family settlement has been considered in several cases. In Mt. Hiran Bibi v. Mt. Sohan Bibi AIR 1914 P.C. 44 it was recognised that a compromise by way of family settlement is in no sense of the word an alienation by a limited owner of family property. This case approved of the decision in ILR S3 All 356 (PC), Khunni Lal v. Gobind Krishna Narain. In the Full Bench case reported in : AIR1939All689 it was said that :
'A deed executed by a Hindu reversioner relinquishing a mere spes successions when the transaction in substance is not a bona fide settlement in a dispute between rival claimants is void under Section 6(a) of the Transfer of Property Act.'
It is clear that a bona fide settlement is not a transfer. In Sultan Ahmad Khan v. Sirajul Haque : AIR1938All170 , it was recognised that an arrangement in which strangers arc included will have the same binding effect on the members of the family so far as it deals with family matters as a family arrangement strictly so called. It was also held that a family settlement does not require registration because it is not a transfer.
34. In Mt. Mahadei Kunwar v. Padarath Chaube : AIR1937All578 , it was held that :
'Where a family settlement does not convey any property from one party to another, but really embodies the agreement between the parties in which the title of the other is acknowledged and recognised, it cannot be regarded as either a transfer of property or even a contract to transfer immovable property.'
35. In view of these cases, it cannot be said that this family settlement is hit by Section 37(a) of the Court of Wards Act.
36. We will now deal with the last matter which was canvassed before us and that is whether it was necessary for the plaintiffs to have the decree passed in Suit No. 54 of 1932 cancelled. It will be recalled that that suit was decreed in terms of the family compromise deed. It was argued on behalf of the plaintiffs that it was open to the plaintiff to treat the decree as void because the family settlement itself was void, being in contravention of Section 37(a) of the U. P. Court of Wards Act. We have already indicated that in our view the settlement deed of the year 1933 was not hit by the said section. Therefore, there is no question of the deed being void, nor any question of the decree being void. Moreover, it has been held in Ramchandra Manohar v. Vasant Narayan (S) AIR 1955 Nag; 221 that even a collusive decree is binding on the parties thereto and their representatives. It was held in Basangouda Giriyeppagouda v. Basalingappa Mallangouda AIR 1936 Bom 301 that :
'The plea of ouster by res judicata may prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute.'
In Charles Hubert Kinch v. Edward Keith Walcott AIR 1929 PC 289, it was held 'a consent order is not a nuillity. It is at best voidable and stands until it has been effectively set aside.'
Therefore the compromise decree would at best be voidable and would require to be set aside. It is true that in Gopal Krishna Nath v. Hari Nath Kapurth AIR 1921 Cal 565 it has been held that 'the contract of the parties is not less a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge'; and that 'where a compromise decree creates a tenancy for a certain number of years at a certain annual rent, the tenant cannot be ejected otherwise than in accordance with the Act notwithstanding anything contained in the compromise and embodied in the decree.'
But this case would not be applicable, because we have held that the compromise deed of 1933 itself is not void. Krishnabai v. Hari Govind ILR 31 Bom 15 at p. 24 is also of no help. It would have been of some assistance, if we had held that the family settlement was void, and it was hit by Section 37(a) of the U. P. Court of Wards Act.
37. Therefore, our conclusion is that though the deed of 1933 would not operate as a surrender, it however operates as an effective family settlement by which the plaintiff is bound. Further that he is bound by the decree passed in Suit No. 54 of 1932 on the basis of the compromise and, he not having prayed for the setting aside of the decree, the decree operates to bar his present claim also.
38. Accordingly this appeal should be and is hereby dismissed with costs.