1. This appeal has been filed by the plaintiff whose suit for a large amount of money Rs. 24,995, and for possession of certain properties was dismissed by the learned Additional Civil Judge of Bijnor. According to the plaintiff, the bonds mentioned in lists (a), (b) and (c), the zamindari properties in lists (d) and (H) and the house properties in list (w) belonged to one Gulzari Mal, who died on 3rd July 1914. The plaintiff claimed that he was the adopted son of Gulzari Mal having been adopted by his widow, Mt. Bhagirathi, on 25th January 1939, and had thus ' become the owner of these properties. The following pedigree will be helpful in understanding the facts of this case:
PADAM SEN = MT. GOMTI (D. Feb. 1875) ||___________________________________________________________ | | | |Hardeo Singh. Darbari Mal Behari Lal Gulzari Mal. (D. July 1914)(D. Deo. 1926) (D. 1915) (D. 1895) = | | | Mt. Bhagirathi (def. 2)Mt. Jamuna ____________ ____________ |(daughter) | | | | || Karori Mal Hazari Lal Bahal Singh Ishq Lal Mt. Bhagwati (daughter)Sumer Chand | | (def. 1) =Mt. Katori Amin Chand | Raghubir Saran | Prakash Chand |Mahabir Pd. Joti Prasad (Plff.)
Padam Sen, the common ancestor of the parties, died on 17th February 1875. His four sons had separated at some time - it is not known when. On 25th January 1890, they partitioned certain house properties, and in the document it is mentioned that they had been for a long time in possession of, and dwelling in, their respective shares. The par. ties are Jains of the Saraogi Agarwal sect and they had been separately carrying on business and acquiring property, but it appears that they were on quite good terms with each other. Gulzari Mal died on 3rd July 1914, and was succeeded by his widow, Mt. Bhagirathi. As a Jain widow she would be the full owner of all the self-acquired property of Gulzari Mal. Plaintiff's, case was that all the properties acquired by Gulzari Mal were acquired by him with the aid of ancestral nucleus which he had got at the partition with his brothers out of the property left by Padam Sen and therefore the entire property must be deemed to be ancestral property and Mt. Bhagirathi was in possession of the same merely as a limited owner. In this case parties have not raised the question that by custom amongst the Jain Agarwals of the Saraogi sect, to which the parties belong, the widow has absolute interest even in ancestral property. So we will assume that if the property was ancestral, Mt. Bhagirathi's rights were limited and she had only the rights of Hindu widow There is one more point that we may indicate, but as it has not been raised before us we need not go into it. The controversy in the lower Court has centred round the question whether the bulk of the property was self-acquired or ancestral and the property was claimed to be ancestral on the ground that there was a nucleus of ancestral property and it was assumed that in such a case the property would be deemed to be ancestral unless the contrary was proved.
2. In a joint Hindu family where it is claimed that a certain property is the self-acquired property of a coparcener, a presumption of fact arises that the property has been acquired out of the joint family funds if it is proved that the coparcener had sufficient joint family funds in his hands out of which the property could be acquired and it would be then for the person who sets up the claim that the property is the self-acquired property of the coparcener to prove that it was acquired out of his separate funds. In the case of a separated Hindu, the entire property in his hands is his own and self-acquired property may mean property purchased by him in contradistinction to the property inherited by him from his ancestors. If such a meaning is assigned to the words 'self-acquired property' no question of ancestral nucleus would arise and ancestral property would be the property that was inherited by Gulzari Mal from his ancestors and the self, acquired property would be the property purchased by Gulzari Mal. However, as we have said, it has been assumed in this case that the property acquired., out of the income of the ancestral property or as it is called out of ancestral funds would be the ancestral property of Gulzari Mal in which the widow would have only a limited interest and we need not, therefore, go into this question. At the time when Gulzari Mal died Behari Lal was already dead, but bis other two brothers, Darbari Mal and Hardeo Singh, were alive. Soon after the death of Gulzari Mal Hardeo Singh claimed that certain properties which stood in the name of Gulzari Mal belonged to him and Gulzari Mal was merely a benamidar for Hardeo Singh.
3. On 14th December 1914 two documents were executed which were called deeds of relinquishment. One document was executed by Mt. Bhagirathi who admitted that certain bonds and certain properties detailed in the said document belonged to Hardeo Singh and her husband was a mere benamidar for him, while by the other document Hardeo Singh and Darbari Mal admitted that Gulzari Mal was the exclusive owner of the properties mentioned in the said document and on his death Bhagirathi became the owner thereof. On 3rd July 1921 Hardeo Singh gave a portion of his property to Bahal Singh. The deed is printed at p. 334 of the paper book. On 25th December 1921 he bequeathed the rest of the property to Bahal Singh under a will. Hardeo Singh died in December 1926 and Bahal Singh became the owner of the properties given to him under the will of Hardeo Singh, It is admitted by Mt. Bhagirathi that she became displeased with Bahal, Singh on account of a dispute with him about an abchak, and then, to have her revenge, she took legal opinion and adopted the plaintiff so that the pre-sent suit could be filed. The plaintiff, as we have already said, was adopted on 25th January 1939 and he filed this suit on 31st January--1939 repudiating the deed of relinquishment executed by Mt. Bhagirathi on 14th December 1914. As regards the simple mortgage-deeds and the usufructuary mortgages in the name of Gulzari Mal, the details of which are given in lists (a), (b) and (c) of the plaint, the plaintiff claimed a money-decree. As regards the zamindari and the house property, the plaintiff claimed possession by the dispossession of defendant 1.
4. Learned Counsel for the appellant has not placed the rights of Joti Prasad, plaintiff, any higher than that of a reversioner on the date of the death of a Hindu widow; only he has argued, it must be assumed that Mt. Bhagirathi died on the day Joti Prasad was adopted. Learned Counsel claimed that the plaintiff would have the same right as a Hindu reversioner to challenge a transaction entered into by a Hindu widow. We will, therefore, for the purposes of this case assume that the plaintiff's rights were the same as those of a reversioner and came into existence on the date of his adoption, and that the rights of Mt. Bhagirathi were merely those of a Jain widow up to the date when she adopted the plaintiff. In that case however on the finding recorded by the Court below that the bulk of the property was the self-acquired property of Gulzari Mal, Mt. Bhagirathi as a Jain widow belonging to the Saraogi Agarwal sect would be the full owner of the property and the reversioner would not have any right to challenge an alienation made by her. Learned Counsel for the appellant has strenuously argued that a Jain widow is governed by the law of the Mitakshara except in so far as it has been modified by custom and that no plea as regards any custom was taken in the written statement. It is true that the word 'custom' was not mentioned in the written statement, but in para. 17 it was clearly pleaded that according to law Mt. Bhagirathi was the full owner of the property with a right to transfer it.
5. The point that a Jain widow of this particular sect is the full owner of the self-acquired property of her husband is now so well settled that it can be said to be almost a part of the law itself. The point is covered by authority dating back to the year 1878 - Sheo Singh Rai v. Dakho ('77) 1 All. 688 - some of the other cases on the point are Shimbbu Nath v. Gayan Chand ('94) 16 All. 379, Nekram Singh v. Srimwas : AIR1926All586 and Pahar Singh v. Bijai Bahadur Singh : AIR1931All695 . As a matter of fact, in the Court below the appellant himself pleaded that the entire property was the joint family property presumably because of the custom, and had no alternative case that even if the property was the self, acquired property of Gulzari Mal, the widow would only be a limited owner. However, for the purpose of this part of our judgment, we shall assume that Mt. Bhagirathi's rights were limited and Joti Prasad had the same rights as a Hindu reversioner would have had on the death of a Hindu widow, and we would then examine how far learned Counsel's contention that his client was not bound by the deed of relinquishment dated 14th December 1914, was sustainable. Learned Counsel has argued that for a valid family settlement it is necessary that there should have been some bona fide dispute between the parties and it should have been settled by the said agreement. Ho then wont on to say that Mt. Bhagirathi being a purclahnashin woman it would be further necessary to prove that she understood the nature of the document and knew of her rights or was told what her rights were in the property in dispute. According to him the document is also without consideration as Mt. Bhagirathi was not getting any benefit out of the said document. She was merely admitting the claim of Hardeo Singh to certain properties and giving the said properties up. (After discussing evidence his Lordship concluded that the deed of relinquishment was executed by Mt. Bhagirathi and Mt. Bhagwati, after properly understanding its contents and with their free will, that they had Ratan Lal, Darbari Mal and other disinterested third parties to advise them and that they were bound by it.) The question then remains how far the plaintiff is bound. Learned Counsel for the plaintiff has urged that on a bona fide family arrangement the defendant could only succeed if he was able to prove that there was a real dispute about a doubful claim and the widow executed the agreement for consideration; otherwise the plaintiff's suit, could only fail if the defendant succeeded in proving by evidence aliunde that the transactions- were benami in the name of Gulzari Mal and that he had no real interest in them. Learned Counsel argued that for the decision of the question whether the property was benami in the name of Gulzari Mal the deeds of relinquishment could not be relied* upon as any evidence.
6. As regards the question of family settlement, when the question arises between the parties to the settlement or their legal representatives all that the Courts of equity concern themselves with is to see that one party did not try to take an unfair advantage by suppression of facts within its knowledge or by other means and if the settlement has been fairly arrived at in the interest of the peace or goodwill of the family or its name and reputation, Courts of equity would not scan with any strictness the quantum of consideration given by one party to another and would not lay any stress on the form of the settlement. But where a Hindu widow is a party to such a settlement and the settlement is being challenged by a reversioner then slightly different considerations may arise as the reversioner does not claim through the widow. In such cases if the property - the subject-matter of the settlement - formed part of her husband's estate, the settlement would be nothing more than a compromise and would be binding in cases where an alienation by a Hindu widow would be binding, though in considering the binding nature of the compromise the Courts would take into consideration the fact that the widow as manager represented the estate and the compromise was entered into by her as a good manager to prevent loss to the estate or even to preserve the good will and reputation of the family. In cases of competing titles, where it is denied that the property formed part of the estate, it would be absurd to lay down that the widow should be compelled to fight the matter out in Court, whatever her views might be and whatever advice she might have received and that she could have no right to settle the matter out of Court, so that a compromise with her would not be of any use to the claimant. If from the facts it appeared that there was no bona fide claim and an advantage was taken of the fact that she was a widow the reversioner, and probably the widow herself, would not be bound. Or if it appeared that the widow had not acted bona fide or with due care it might be possible for the reversioner to challenge the settlement. In the absence of any satisfactory evidence to that effect the transaction would be binding on the reversioners.
7. To prove that there was no dispute between Hardeo Singh and Mt. Bhagirathi which could be settled by a compromise the plaintiff produced Shabbir Husain, whose evidence we have already discussed, and Mt. Bhagirathi. According to Mt. Bhagirathi there was no dispute between her and Hardeo Singh after the 'death of Gulzari Mal nor was there any dispute between Gulzari Mal and Hardeo Singh about any property. We cannot however lose sight of the fact that Mt. Bhagirathi and Mt. Bhagwati did not challenge this deed of relinquishment for a period of twenty-five years and that both of them acted on it without any objection by the plaintiff's father or by any other member of the family and the further facts that Darbari Mal, who was the brother of Gulzari Mal and Hardeo Singh was a party to one of the deeds of relinquishment, though he was getting no benefit out of the transaction, and that Ratan Lal who, according to Mt. Bhagirathi, was a very reliable person and was related to her, was advising her at the time of the execution of the deed and was an attesting witness to it. Hardeo Singh, Darbari Mal and most other people who could have given evidence about the circumstances under which these documents were executed in the year 1914 are all now dead. The document has been acted upon for over twenty-five years by all those who were parties to it. It does not appear that any of the debtors ever questioned the title of Hardeo Singh to the documents with respect to which he claimed that Gulzari Mal was merely a benamidar for him. In the deed of relinquishment executed by Mt. Bhagirathi it is mentioned that from an examination of the account books of Gulzari Mal it was proved that the property mentioned in the deed did not belong to Gulzari Mal and that Gulzari Mal was merely a benamidar for Hardeo Singh. A story has been started on behalf of the plaintiff that after the death of Gulzari Mal, Hardeo Singh began sitting at his shop and it was he who removed all the account books. Mt. Bhagirathi in her statement, as we have already said, has admitted that she looks after all her business, is able to settle all her accounts and carries on all her loan transactions, and it is impossible to believe that she would allow all the account books to be removed by Hardeo Singh or to conceive how she could carry on the money-lending business in the absence of the account books of her husband. Learned Counsel has pointed out that if the account books of Gulzari Mal have not been produced, the account books of Hardeo Singh also have not been produced. It must be borne in mind that these transactions were being challenged almost 26 years after they were entered into and almost 18 years after the death of Hardeo Singh. It is, therefore, not surprising if the old books have not been kept all these years. In view of all these circumstances which point to the genuineness of the transactions we are inclined to accept the defendant's evidence that after the death of Gulzari Mal, Hardeo Singh claimed that certain properties which stood in the name of Gulzari Mal, belonged to him and he was the real owner thereof and that matter was settled at the intervention of Ratan Lal and various other persons by a compromise, the widow recognising the genuineness of the claim of Hardeo Singh and Hardeo Singh and Darbari Mal recognising the claim of the widow to the property that really belonged to Gulzari Mal. We do not see how it can be said under those circumstances that there was no consideration for the deed executed by Mt. Bhagirathi. Apart from the fact that she was saved the costs of any litigation that might have ensued, there was forbearance on the part of Hardeo Singh to sue, and Hardeo Singh and Darbari Mal recognised her husband's title to certain properties which they might not have done if there had been a continuing dispute between the parties. After this deed of relinquishment, Hardeo Singh filed several suits on the bonds which had stood in the name of Gulzari Mal and in those suits he made Mt. Bhagirathi a party as defendant. It is remarkable that in none of those suits Mt, Bhagirathi or any debtor ever claimed that Hardeo Singh was not the real owner of the bond and was therefore not entitled to maintain the suit. Learned Counsel has cited before us a case reported in Bangs Chandra Dhur v. Jagat Kishore ('16) 3 A.I.R. 1916 P.C. 110 at p. 195 and has relied on the following observations:
It is well established that such recitals cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. Indeed it is obvious that if such proof were permitted the rights of reversioners could always be defeated by the insertion of carefully prepared recitals. Under ordinary circumstances and apart from statute, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them.
We are, however, not relying on mere recitals but on all the surrounding circumstances which existed at the time when the deeds were executed. These recitals could not be said to be inadmissible. In the same case at p. 196 their Lordships go on to say:
But in such a case as the present their Lon ships do not think that these recitals can be disregarded, nor, on the other hand, can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, recitals consistent with the probability and circumstances of the case, assume greater importance, and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation and, if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction-perfectly honest and legitimate when it took place-would ultimately be incapable of justification merely owing to the passage of time.
8. Learned Counsel then cited a case reported in Kondama Naicker v. Kandasami Goundar ('24) 11 A.I.R. 1924 P.C. 56. The facts of that case are quite distinguishable from the case before us. In that case it was established that M who induced a Hindu widow to transfer to him certain properties had put in a claim without any belief that he had a valid claim. On the finding that the claim put forward was without any foundation, the transfer could necessarily not be justified. Learned Counsel for the plaintiff has strongly relied on the fact that the motive alleged by the defendant for the transaction being benami in the name of Gulzari Mal is not convincing. The defendant gave some evidence that Hardeo Singh was not on good terms with his daughter and daughter's son and therefore entered into various transactions in the name of his brothers benami for himself. The reason assigned by the defendant may or may not be true, but the fact remains that Hardeo Singh gave away his entire property by gift and will to the defendant and thus deprived his daughter and his daughter's son. It is well known that the practice of taking transfers in the name of a third person when such a third person is not intended to benefit by the said transfer is exceedingly common in this country and that is one of the reasons why their Lordships of the Judicial Committee have held that the presumption of advancement made in England, if the conveyance is in favour of the wife or children of the person who provided the consideration, does not apply to India. Learned Counsel has then pointed out that Gulzari Mal was carrying. 'business for himself and there were documents in 'his favour which were admittedly not benami and there were other documents in the name of Gulzari Mal and Darbari Mal where either one or both were claimed to be benamidars' for Hardeo Singh. It is nobody's case that' Gulzari Mal had no property of his own or that he was not carrying on a business of his own. Therefore much reliance cannot be placed on the documents dated 3rd May 1898-(p. 128), and 3rd August 1901 (p. 134) which were in the name of Gulzari Mal alone, and the documents dated 27th August 1903 (p. 147)' and 12th July 1904 (p. 150) which were in the name of Gulzari Mal and Darbari Mal. Learned Counsel for the plaintiff appellant has assumed that Gulzari Mal was not a benamidar in these deeds. There is no evidence to prove that fact. He has merely deduced it from the fact that these documents were not mentioned in the deed of relinquishment executed by Mt. Bhagirathi, but they may have been paid up before 1914. Prom all the facts and circumstances that we have mentioned above and that appear from the record we feel satisfied that Hardeo Singh put up a bona fide and genuine claim that, the property included by Mt. Bhagirathi in the deed of relinquishment belonged to him, and that Mt. Bhagirathi was well advised to-accept the said position and to execute the deed of relinquishment in favour of Hardeo Singh.
9. Coming to the various items claimed in the plaint for the documents mentioned in lists (A), (B) and (c), the only relief claimed by the plaintiff is the payment of the money which he would have been able to realise under those deeds, if those deeds had been still outstanding and within time. Plaintiff's contention is that the defendant is liable for all the debts due by, and liabilities of, the donor at the time of the gift. The gift was executed on 3rd July 1921 and is printed at page 334. Admittedly the gift was not of the entire property of Hardeo Singh and it could not be said, therefore, that Bahal Singh, the defendant was the universal donee and was liable under Section 128, T.P. Act, for all the debts due by, and liabilities of, Hardeo Singh. On 25th December 1921 Hardeo Singh executed a will (p. 341) under which he made Bahal Singh his universal legatee. Bahal Singh succeeded to the estate of Hardeo Singh in December 1926 as 'his legatee on his death. In the Succession Act, there is no section analogous to Section 128, T.P. Act, but when a person dies his rights and liabilities, in respect of causes of action that survive the deceased, are vested in his legal representative, Ordinarily the executor or be administrator would be the legal representative and the estate that is to be paid out to the legatees would be the estate minus the liabilities on it. In case, however, there is only one legatee and there is no executor or administrator to manage the estate, it may be taken that the estate that vests in him must be the estate minus all the liabilities on it, and we are, therefore, of the opinion that the legatee would be liable in respect of such causes of action that survived the deceased. The point was considered in Dehra Dun Massoorie Electric Tramway Co., Ltd. v. Hansraj : AIR1935All995 and Dwarka Singh v. Harihar Bakhsh('36) 23 A.I.R. 1936 Oudh 7 and we agree that the position of the universal legatee and the universal donee would thus be practically the same. We may only point out that it is not only a question of a universal legatee, but that even in a case where the estate is to be divided between the various legatees they would jointly be liable in the same manner as a universal donee. In the case of a universal donee, it was necessary to provide for his liability under Section 128, T.P. Act, as otherwise in case of personal liabilities the person making the gift being still alive, the transferee by gift of his property would escape all liability. It was not necessary to make similar provisions in the Succession Act where the estate of a deceased must be deemed to be the balance after all liabilities are paid up. If we held that the deed of relinquishment was bad the defendant might be liable for such amounts as he might have himself realised or which might have been realised by Hardeo Singh provided the plaintiff's claim was within limitation.
10. Learned Counsel has argued that there would be no limitation as against him for his rights come into existence only on the date of his adoption. In the case of immovable property under Article 141, Limitation Act, a reversioner has an independent right to recover possession of the property and limitation against him dates from the date of the widow's death, but there is no such article which would entitle a reversioner to claim moveable property, the claim to which by the widow was barred. In a case where a person was in possession of moveable property with the consent of the widow, there could be no question of any limitation running against the widow and the limitation against the reversioner might run from the date of the widow's death, but where, as in the present case, it was urged that the com-promise was obtained from the widow by exercise of undue influence and fraud, in the absence of an article like Article 141, Limitation Act, applicable to moveable property it is arguable that there could be no fresh period: of limitation in favour of the reversioner if the claim by the widow herself was barred. As we were against the appellants on the facts, we did not hear full arguments on the point, and we, therefore, express no definite opinion about it. (Best of the judgment is not material for report.) This disposes of all the items claimed by the plaintiff in the suit. We are satisfied that the judgment of the Court below is right and we see no reason to interfere. We dismiss this appeal with costs.