1. The following questions have been referred to us for answer:
(1) Is the agreement dated 20th December 1927 a family settlement?
(2) Is the plaintiff entitled to question the said agreement.?
2. The present suit was filed by the plaintiff for a declaration that an agreement dated 20th December 1927, was null and void against her. She is the sister of Sheo Shobhit Rai, who died about 1926, and on whose death the said agreement was entered into between his widows Mt. Jota Kunwar and Mt. Rumali Kunwar, his step-mother Mt. Rajwanta, another sister's son Narsingh and Kashi Rai, Sarju Rai and Bhagwant Rai, three nearest reversioners at the time. A deed of gift had been executed in 1926 by the senior widow Mt. Jota and the step-mother Mt. Rajwanta in favour of Narsingh, who is alleged by the defendants to have been a sister's son; but that fact was not admitted in the written statement in this case. We know very little about the exact nature of the suit that was brought by Kashi Rai and others, but the recitals in the agreement show that the two ladies Jota and Rajwanta were setting up a will of the deceased Sheo Shobhit Rai in their favour and were claiming mutation of names on that account. The application for mutation of names was contested by the collaterals and some revenue cases were pending at the time. We also know that a suit was brought in the civil Court by the three collaterals against the widows and the donee and it was pending at the time. The three collaterals were rather distant relations of Sheo Shobhit Rai, being the great grandson of Paltan Rai, who was the great grand father of Sheo Shobhit Rai. There is nothing on the record to show that; the collaterals either brought a suit for possession or even alleged that they had been joint with the deceased and were entitled to immediate possession in preference to the two widows. All that happened might have been that they brought a suit for declaration that the deed of gift executed by the two ladies in favour of Narsingh was null and void and would not be binding on the reversioners after the death of the two widows. It was in the course of this litigation that the agreement in question was executed by all the parties who were then involved in litigation. The document was duly registered. The learned Subordinate Judge says, that it was filed in Court, but there is no direct evidence to prove even that fact.
3. The present plaintiff Mt. Rajpali Kunwar who is admittedly a sister of the deceased Sheo Shobhit Rai was, as the law then stood, not any heir at all to the estate of Sheo Shobhit Rai. She was altogether left out and was of course neither made a party to the agreement nor represented by any one on her behalf. Not being an heir at all she was altogether ignored. Indeed it was clearly recited in the agreement that excepting the collaterals there was no other heir of the deceased. Under this agreement the donee gave up his rights under the deed of gift and the step-mother Mt. Rajwanta claimed only a maintenance allowance without any interest in the estate. Properties in two villages were put up in possession of the three collaterals as absolute owners from that very time and the rest of the property of Sheo Shobhit Rai remained in the possession of the two widows as Hindu widows, and it was provided that after their deaths the collaterals or their heirs would enter into possession and enjoyment of the said property as absolute owners. The document was described as a family settlement of the disputes among the parties.
4. The first question is whether this agreement is in the nature of a family settlement. The evidence on this point is extremely meagre and with the exception of the document itself there is hardly any other material which can throw any light on the circumstances under which this agreement was executed. It is not quite clear what was the exact nature of the dispute between the parties apart from the will which had been set up by the two ladies in their favour. For ought one knows the Hindu widow's estate was never disputed by the three collaterals and they never set up any paramount title of their own in preference to that of the Hindu widows. If this be the fact then it would be difficult to hold that the three collaterals had any bona fide dispute with the widows under which the whole estate could be partitioned there and then. The document merely indicates that there was some sort of a compromise between the widows, but all the circumstances not being before us, it is impossible to say that this agreement was in the nature of a family settlement.
5. If the two parties, namely the Hindu widows on the one side, and the collaterals on the other, had both been claiming title to the estate and a right to immediate possession, it could then have been said that there was a bona fide dispute between the parties which could be settled under a family arrangement. But if the reversioners were merely challenging the validity of the deed of gift executed by the widows in favour of Narsingh and were not claiming any immediate title in themselves, they could not by means of the agreement partition the property and acquire an absolute interest for themselves and their own heirs to the exclusion of the real reversioners who might happen to succeed on the date of the death of the surviving widow when succession opened out. To allow the nearest reversioner to enter into a compromise with a Hindu widow and partition the property and take a part of it exclusively for himself and his own heirs and thereby exclude the reversioner who would become the ultimate heir would be dangerous and would open a wide door for fraud. In such a case it can hardly be said that the nearest collateral who takes a part of the property is representing the entire body of reversioners including that reversioner who would ultimately succeed to the 'estate on the death of the widow. Indeed he is acting adversely to the interest of such an heir in trying to take the property for himself exclusively.
6. The learned Counsel for the respondents has not been able to cite before us a single case in which property taken by a nearest reversioner exclusively has been held to belong to him to the exclusion of the reversioner who ultimately succeeded to the estate on the death of the widow. The cases which have been cited before us are cases where either a decision against the widow and in favour of the nearest reversioner has been held to be binding on the widow and her own heirs, or cases in which a decision against the reversioner has been held to be binding against all other reversioners. Where the reversioners claim title on behalf of the entire body of reversioners, the suit becomes a representative suit and any decision or bona fide compromise arrived at would naturally be binding on all persons whom they represent. Similarly where a third party is claiming title to the estate and a suit is brought against the Hindu widow, who, in order to protect the estate, denies the title of the claimant, she is representing the future reversioners as well, and a decision fairly obtained may not only bind the widow but also all other reversioners who come after her. The case before us however is quite different as here the reversioners attempted to partition the estate with the Hindu widows and retain a part of the property for themselves to the exclusion of the heirs who ought to succeed under the Hindu Law. Such an agreement cannot be regarded as a family settlement so as to have a binding character even as regards the persons who were not parties to the agreement who were not represented at the time and who do not derive title through any of the parties to the agreement.
7. The next point for consideration is whether the plaintiff has any right to question the said agreement. She would undoubtedly have a locus standi to maintain a suit and get a declaration that the agreement is not binding on her if she is a contingent heir to the estate of Sheo Shobhit Rai. In 1926, when the agreement was executed, she was undoubtedly not an heir under the strict Hindu Law. But in 1929 Act II of 1929 came into force. It is contended on behalf of the plaintiff that she has become an heir by virtue of this enactment. On the other hand, it is urged on behalf of the respondents that to hold that she is an heir would be giving to this Act retrospective effect inasmuch as Sheo Shobhit Rai had died before the Act came into force even though the succession may open afterwards.
8. There is a considerable preponderance of authority in favour of the view that the plaintiff can take advantage of this Act. This question arose in this Court soon after the coming into force of the Hindu Law of Inheritance (Amendment) Act, and one of us in S. A. No. 1331 of 1930, decided on 1st December 1930, held that as reversioners have no vested interest in the estate at all but have a mere spes successiones or a chance of succession, which is a purely contingent right which may or may not accrue, and the succession would not open out until the widow dies, the person who would be the next reversioner at the time would succeed to the estate and the alteration in the rule of Hindu law brought about by the Act would then be in full force. It was clearly stated that 'by holding that in view of this Act the plaintiff at the present moment is not the next reversioner, one is not giving a retrospective effect to the Act'. This decision was affirmed by the Letters Patent Bench in Bandhan Singh v. Mt. Daulata Kuar 1932 ALJ 384. A learned single Judge of the Lahore High Court whose attention was apparently not drawn to these cases took a contrary view in Fateh Mohammad v. Amar Nath 1933 Lah 777, and a Bench of the Madras High Court, in Krishnan Chettiar v. Manickkammal 1934 Mad 138, followed the latter view. But the learned Chief Justice of the Patna High Court in Chulhan Barai v. Mt. Akli Baraini 1934 Pat 324, preferred the view expressed in Allahabad and held that where the succession opened out after coming into force of the Act, a sister can take advantage of the provisions of the Act even though the last male owner had died previously. Another Bench of the Lahore High Court in Sbakuntla Devi v. Kaushalya Devi 1936 Lah 124 has in a very well considered judgment overruled the previous decision of the learned single Judge of that Court and dissenting from the Madras view has accepted the Allahabad view. The same Bench in another case in Mt. Sattan v. Janki 1936 Lah 139 again adhered to that view. Recently another Bench of this Court, of which two of us were members, has expressed the opinion that if the succession opens after the coming into force of the Act, a sister is entitled to rank as an heir in the order mentioned in Section 2: Rajdeo Singh v. Janak Raj Kuari 1936 ALJ 64. In view of the well-considered judgment of the Lahore High Court in Sbakuntla Devi v. Kaushalya Devi 1936 Lah 124, it is no longer necessary to examine in detail the reasons given by the Madras High Court for the contrary view. The learned Judges of the Madras High Court had relied mainly on the language of the preamble and not so much on the language of the substantive Section 2 itself. No doubt a preamble can be looked at when the section is ambiguous and it supplies a key to the mind of the legislature and indicates what its intention was, but where the language of the section is clear, a preamble cannot control its provisions. So far as Section 2 is concerned it clearly lays down that a sister shall be entitled to rank in order of succession next after certain heirs. There are no limitations or conditions contained in that section. At the time when the succession opens it is therefore open to the sister to say that she is entitled as of right to rank as an heir to the estate of her brother after the other heirs named therein. In the Madras case emphasis was laid on the use of the words 'a Hindu male dying intestate' and it was suggested that the word ' dying' connotes a future tense and means a person who will die after the coming into force of the Act. The word 'dying' by no means connotes a future tense, nor for the matter of that a past tense exclusively. Taking it literally it would rather connote a present tense. But as pointed out by the learned Judges of the Lahore High Court in Shakuntla Devi v. Kaushalya Devi 1936 Lah 124, the word is a mere description of the status of the deceased and has no reference and is not intended to have any reference to the time of the death of a Hindu male. The expression merely means 'in the case of intestacy of a Hindu male.'
9. The second ground emphasized in Madras is that to allow a sister whose brother had died before the Act came into force to succeed as an heir would amount to giving the Act a retrospective effect, which it would not have in the absence of an express provision that it is retrospective. As pointed out in Bandhan Singh v. Mt. Daulata Kuar 1932 ALJ 384, one is not giving to the Act a retrospective effect if a sister is held to be an heir when the succession opens out after the coming into force of the Act. It would be giving to it a retrospective effect if it were held, for instance, that even though the succession opened out before the Act came into force she is entitled to claim the estate if the suit is brought after the Act.
10. Lastly it has been contended by the learned Counsel for the respondents that the Act was never intended to confer a right of succession on persons who were not heirs previously but that as indicated by the preamble the intention merely was to alter the order in which certain heirs of Hindu males dying intestate are entitled to succeed. It is therefore urged that inasmuch as a sister was not an heir under the Mitakshara law prior to 1919, the Act was never intended to cover her case. Such an intention would nullify the whole object of the Act. The Act as a matter of fact applies only to persons who but for the passing of this Act would have been subject to the law of the Mitakshara. It does not apply to persons subject to other laws. If we were to hold that inasmuch as a sister was not an heir under the Mitakshara law, the Act does not apply to her, the result would be that the Act would be wholly inapplicable to a son's daughter, daughter's daughter, sister and sister's son who are mentioned in Section 2 and who were not previously heirs under the Mitakshara law. Such a contention therefore cannot possibly be accepted.
11. As the present plaintiff was not represented in the previous agreement by the collaterals who obtained rights for themselves and as a mere compromise by a Hindu widow is not binding on the reversioners: Mahadei v. Baldeo (1908) 30 All 75, the plaintiff is entitled to question the agreement. I would therefore answer the second question in the affirmative.
12. I agree.
13. I agree.