Iqbal Ahmad, J.
1. By the suit giving rise to the present appeal the plaintiff-appellants assailed the validity of a compromise entered into by their maternal grandmother Bindeshri Bahu in the year 1896 and the validity of a decree passed in a suit brought by their mother Sohan Bibi in the year 1906 for a declaration that the compromise was not binding on her. The following pedigree will explain the relationship of the parties:
HARISH CHANDRA (d. 16-8-1856) = Manki Bahu (d. 1-6-1893)|---------------------------------------------------| | |Hiran Bibi= Mukandi Bibi= Punno Bibi, defendant 2 (Adopted in 1860Jagannath Das Raghunath Das = Mannu Lal. Parshottam Das| | d. December 1888)Krishna Das Baijnath Das = Bindeshri Bahualias Chuttu Lal defendant 3. (d. 27-8-1916).defendant 4. ||--------------------------------|-------------------------------------------------| |Mohan Bibi, defendant 5 Sohan Bibi, defendant 6= Baldeo Das (d) = Mukandi Lal|----------------------------------------| |Gopal Das, plaintiff 2. Baldeo Dasminor, plaintiff 1.
2. It is common ground that out of the properties in dispute village Shivdasa and the two houses in the city of Benares known as bari haveli and choti haveli and the Government promissory notes were owned by B. Harish Chandra. There is controversy between the parties as regards the existence or the ownership of the remaining properties in dispute. B. Harish Chandra was a Darbari and was the Dewan of Raja Narain Rao Peshwa, and was admittedly in affluent circumstances. He died in 1856 leaving a widow Manki Bahu and two daughters named Hiran Bibi and Mukandi Bibi. After the death of Harish Chandra a third daughter Mt. Punno Bibi was born to him. Manki Bahu entered into possession of all the properties left by Harish Chandra. In the year 1860 Manki Bahu adopted a boy named Sita Ram. After the adoption Sita Ram was named Parshottam Das. It appears that the natural father of Sita Ram was dead at the time of adoption and Sita Ram, was given in adoption by Mt. Jassa, his natural mother, by means of a deed of agreement dated 23rd February 1860, which is printed at p. 103 of the record. The learned Subordinate Judge has found, and we agree with the finding, that the adoption was made by Manki Bahu, in pursuance of the authority given to her by her husband. On 10th May 1860 Manki Bahu filed a petition in the Court of the Agent to the Governor-General praying that the name of Parshottam Das 'be entered in the record of the office of the Agent to the Governor-General in place of B. Harish Chandra.' In the petition it was stated by Manki Bahu, that the adoption was made by her 'in obedience to her late husband's orders' and that
it has been stipulated that this applicant will, during her lifetime, retain absolute control over her husband's property, and all management and acts will be done according to the directions given by her, and that the future arrangement and management of the effects and estate of her husband and of the aforesaid adopted boy and of others after her death will be carried on according to the directions given by the applicant for that purpose.
3. The Agent to the Governor General ordered that 'in accordance with the prayer of the petitioner the name of the adopted son be entered in the list of darbaris kept at this office.' It would be noted that there is nothing in the deed of agreement executed by Mt. Jassa to support the suggestion that the stipulation mentioned in the petition of Manki Bahu was made at the time of the adoption. Apart from this any stipulation which is repugnant to the rights of an adopted son in the estate of his adoptive father is void. Further, under the petition filed by her, all that Mt. Manki Bahu, retained was the authority to control and manage the property during her lifetime and she did not reserve to herself proprietary interest in her husband's estate. On the adoption of Parshotam Das the entire estate of Harish Chandra vested in him, but, as Parshotam was only about 5 years of age at the time of the adoption, Manki Bahu continued in possession of the properties, presumably as the guardian of her adopted son, and as such retained 'absolute control over her husband's property' and 'all management and acts' were done according to her directions. On 6th September 1871 Manki Bahu presented another petition to the Agent to the Governor-General intimating that she 'executes a will and wishes' that the condition laid down in the will regarding the management of the property be acted upon after her death. She also stated in the petition that she will remain 'the owner in possession' of all the properties during her lifetime. The Agent to the Governor-General ordered that 'as the petitioner is at liberty to make whatever arrangement she likes regarding her property' the petition 'be kept in the office and the petitioner be informed by means of a copy of the order.'
4. On 9th December 1871 Manki Bahu executed a will by which she bequeathed the choti haveli and two Government promissory notes of Rs. 12,000 to Parshotam Das, Rs. 8,000 to each of be?: three daughters and dedicated the bari haveli and the income of village Shivdasa in favour of Thakurji, who is the first defendant in the present suit. She made other dispositions by the will with which, we are not concerned in the present litigation. In the will she recited the fact of Parshotam Das having been adopted in pursuance of the authority given to her by her husband and of the information given to the Agent to the Governor-General about the conditions of management of the estate and property' of Harish Chandra and the will concluded with the following declaration made by Manki Bahu:
So long as I am alive, I will remain in possession and enjoyment of the entire estate of my husband as before. In my lifetime, I will, without any regard to this will, have a power to make sale, gift and bakshish etc. in respect of all my estate, moveable and immoveable properties, cash, goods and ornaments etc., in every way, and I have power to amend and cancel this will. I have and will have power to make alterations in it at every time.
5. Parshotam Das, who was then 16 years of age, attested the will and made an endorsement that he accepted the terms of the will. It cannot be disputed that Manki Bahu was not the owner of the estate devised by the will and was not competent, as recited in the will, to alienate the same. Parshotam Das died in the year 1883 leaving a widow Bindeshri Bahu and two daughters named Mohan Bibi and Sohan Bibi. There is no evidence in the present case as to who remained in actual possession of the estate of Harish Chandra during the period intervening between Parshotam's majority and the date of his death, nor is there any evidence to show whether the possession of the property was with Bindeshri Bahu or with Manki Bahu after the death of Parshotam. On 24th January 1893, Manki Bahu executed another will. In this will it was recited that Manki was the owner of village Shivdasa and that she shall remain during her lifetime the absolute owner of the entire property' and after her death Bindeshri Bahu shall be the absolute owner of the entire property belonging to' Manki Bahu. By the time that this will was executed Government Promissory notes of the value of only Rs 44,000 were left with Manki out of which she reserved for herself promissory notes of the value of Rs. 8,000 and notes of Rs. 36,000 were divided between Bindeshri and Manki's three daughters.
6. The endowment made in favour of Thakurji by the former will was maintained and detailed provisions were made as regards the management of the property and the worship of Thakurji. By this will of 1893 Manki Bahu dealt with all the properties mentioned in the earlier will of 1871 and the dispositions made by the will of 1893 were in various-respects different from and inconsistent with the provisions of the will of 1871. Probate of the will of 1893 was granted by the Court which treated it as the last will and testament of Manki Bahu. It is, therefore, clear that the will of 1871 was revoked by the will of 1893. Manki Bahu died on 1st June 1893, and within two years of her death, viz. on 3rd January 1895, Punno Bibi, one of her daughters, filed a suit against Bindeshri Bahu for a declaration that Government Promissory notes of the value of Rs. 40,000 that were in the possession of Bindeshri belonged to Punno and her sisters in equal shares, and for recovery of the price of household goods that were also taken possession of by Bindeshri Bahu. Mukandi and Mt. Hiran, the two sisters of Punno, were arrayed as pro forma defendants in the suit. The plaint tiled by Punno Bibi is printed at p. 151 of the record and it appears by a perusal of that document that Punno Bibi's case was that Harish Chandra was the last male owner of the properties in dispute and after his death Manki Bahu remained in possession of those properties as a Hindu widow with limited interests, and on hex death Punno Bibi and her sisters became entitled to those properties by right of inheritance. The fact that Parshotam was the adopted son of Harish Chandra was not mentioned in the plaint and Bindeshri Bahu was alleged to be in possession of the properties without any right. The claim by Punno Bibi was only with respect to movoables and not as regards the immoveable properties that originally belonged to Harish Chandra.
7. Bindeshri Bahu contested the suit mainly on the allegation that Parshotam, being the adopted son of Harish Chandra, was the last male owner of the properties in dispute and that he by a will devised absolute proprietary interest in all. the properties owned by him in her favour. The suit filed by Punno Bibi terminated by a compromise dated 27th May 1896, (the compromise is printed at p. 205 of the record). A decree in terms of the compromise was passed on 28th May 1896 (p. 161 of the record). The compromise dealt with not only the promissory notes and the moveables in dispute in the suit but also the immoveable properties that once belonged to Harish Chandra, By the compromise the parties to the suit ' admitted and accepted the wills executed by Manki Bahu' and 'the receipt for Rs. 1,000 executed by Parshotam Das.' A reference to this receipt will presently be made. Out of the promissory notes in dispute notes of the value of Rs. 20,000 and the choti faaveli were given to Bindeshri Bahu and she was given 'full powers as a proprietor to transfer the house and the aforesaid notes and also to receive past, present and future interest.' The articles and goods that were in possession of Bindeshri were allowed to remain in her possession 'as an owner.' The remaining promissory notes of the value of Rupees 20,000 were awarded by the compromise to Punno Bibi and her sisters and the testamentary endowment made by Manki Bahu by her will of 1893 was confirmed.
8. The compromise completely ignored the daughters and the other reversionary heirs of Parshotam, and whatever Bindeshri received under the compromise she received as a proprietor with unfettered powers of alienation. The case of Punno and her sisters on the one hand was that the properties in dispute belonged to Harish Chandra, and as such they were entitled to the same by right of inheritance. Bindeshri Bahu, on the other hand, contended that an absolute estate was devised in her favour by Parshotam Das. The case put forward by both the parties was, therefore, adverse to the interests of the reversioners of Parshotam, and by the compromise the properties in dispute were divided between the daughters of Harish Chandra and Bindeshri Bahu, and no provision was made for the protection of the interests of the reversionary heirs of Parshotam. The validity of the wills executed by Manki Bahu, that were wholly prejudicial to the interests of the daughters and other reversionary heirs of Parshotam, was also admitted by the compromise. On 15th January 1906 Sohan Bibi commenced an action for a declaration that the 'transfer of property' affected by the compromise and the decree of 1896 was 'null and void' after the death of Bindeshri Bahu so far as it was prejudicial to her rights.
9. She also prayed for the appointment of a receiver for the proper management and protection of the property in suit. The three daughters of Harish Chandra and Bindeshri Bahu and Mohan Bibi were arrayed as defendants to the suit. Mukandi Bibi died during the pendency of the suit and her son Baijnath Das was substituted as a defendant in her place. The case put forward by Sohan Bibi was that Parshotam Das was validly adopted in the year 1860 and was 'the real owner and possessor of the estate of the late B. Harish Chandra from the time of his adoption' and that by mutual agreement Manki Bahu was allowed to continue in possession of the property 'as manager for life'. She alleged that, on the death of Pjarshotam, Bindeshri Bahu entered into possession of Parshotam's property by right of succession as a Hindu widow with limited powers, and was not competent to relinquish any portion of those properties in favour of the daughters of Harish Chandra. She accordingly maintained that the compromise in fact and substance amounted to an alienation of the properties by Bindeshri Bahu and was therefore not binding on her.
10. The suit was contested by the daughters of Harish Chandra, and the principal issues raised in the case related to the validity of the adoption of Parshotam Das and to an alleged relinquishment of his rights by him and as to the binding nature of the compromise decree passed in 1896, There was also an issue on the question as to whether the suit was time-barred. The suit was tried by the District Judge of Benares who delivered judgment on 4th March 1907 dismissing the suit. He found it proved that Harish Chandra had authorized his widow to adopt a son and that Parshotam Das was in fact adopted and his adoption was valid. He held that the compromise was a bona fide settlement of dispute between the daughters of Harish Chandra and Bindeshri Bahu in a contested suit and that the decree passed on the basis of the compromise was binding on the reversioners of Parshotam including Sohan Bibi. On the question of limitation he held that though Manki Bahu was in possession of the properties in her lifetime, being the de facto guardian of Parshotam Das, her possession could not be adverse to Parshotam Das. In this connexion he observed that Parshotam Das died within 12 years of his attaining majority, and therefore his title to the property was not extinguished on the date of his death. He held that even if it be assumed that Manki Bahu continued in possession of the properties after the death of Parshotam Das, her possession could only be adverse to Bindeshri Bahu, who was entitled to possession of the properties on the death of Parshotam, and not to Sohan Bibi who had no right to possession till Bindeshri's death. He however held that the suit was governed by Article 120, Limitation Act, and was time-barred. As a result of these findings the District Judge dismissed the suit without recording findings on the other issue raised in the case.
11. Sohan Bibi appealed to this Court and the appeal was decided by a Bench of this Court on 12th February 1909. This Court agreed with the finding of the District Judge on the question of adoption, but it held that the question whether the compromise and the decree of 1896 amounted to an alienation of the family property of Bindeshri Bahu was concluded by a decision of this Court in Gobind Krishna Narain v. Khunnn Lal (1907) 29 All 487. In that case it was held that a compromise made by a Hindu widow is not binding on the reversioners even though it has been followed by a decree of Court and that the reversioners can only be bound by a decree made after full contest in a bona did litigation. This Court therefore held that the compromise of 1896 amounted to an alienation of the properties by Bindeshri Bahu, and, as such, Sohan Bibi was entitled to maintain the suit. On the question of limitation also this Court disagreed with the District Judge so far as the immoveable properties in dispute were concerned. It held that the suit as regards the immoveable properties was within time, but the claim as regards moveables was time-barred. In the result the appeal of Sohan Bibi was allowed and the case was remanded to the District Judge for being disposed of in the light of the observations made in the judgment of this Court.
12. The suit was then tried by a Judge other than the Judge who had originally dismissed the suit. The learned Judge held that the endowment evidenced by the will of 1871 was made by Manki Bahu with the consent of Parshotam and that Parshotam 'ratified by a further registered instrument the bequests made by the will.' He overruled the contention of the plaintiffs that the alleged ratification by Parshotam of the will of 1871 was of no avail to the defendants as the will of 1871 was revoked by Manki Bahu by the will of 1893. The learned Judge was of the opinion that the will of 1893 did not revoke the former will but only confirmed 'the bequests formerly made.' He also referred to a will dated 9th December 1883, alleged to have been executed by Parshotam Das and held that by virtue of that will Bindeshri Bahu became full owner of the properties devised by that will. He therefore held that Sohan Bibi had no right to the properties in dispute and Bindeshri Bahu, who was the absolute owner of the properties, was competent to enter into the compromise of 1896. He concluded with the observation that the will of 1871 was in the nature of a family arrangement, and, as such, was valid and binding and was rightly confirmed by the compromise of 1896. In the alternative he held that as Parshotam had ratified the will of 1871 the devise made by that will must be considered as a joint alienation by Manki Bahu and Parshotam. He therefore decided that in either view of the matter the plaintiff had 'no right and interest present or contingent in the property duly and validly endowed.' In view of these findings the learned District Judge dismissed the suit. Sohan Bibi filed an appeal in this Court and the appeal was decided by this Court on 6th April 1911.
13. About a week before the decision of the appeal by this Court, viz. on 28th March 1911, the decision of this Court in Gobind Krishna Narain v. Khunnn Lal (1907) 29 All 487, had been reversed by the Privy Council, but it appears that at the time of the hearing and decision of the appeal of Sohan Bibi the fact of reversal of the decision in Gobind Krishna Narain v. Khunnn Lal (1907) 29 All 487 was not known and was not communicated to this Court. This Court disagreed with all the findings recorded by the District Judge. It held that by her petition of the year 1860 Manki had retained to herself only the power of controlling and managing the property during her lifetime and had not reserved any absolute interest in her husband's estate, that the arrangements which were made by the will of 1871 were not subsisting at the time of the death of Manki as the will of 1871 was revoked by the subsequent will of 1893 and that oven if Parshotam had ratified the will of 1871 the ratification was of no avail to the defendants as the will of 1871 itself had been revoked; that the receipt alleged to have been executed by Parshotam could not be construed as a relinquishment of his right by him, and lastly that it was not established that Parshotam Das left any will at the time of his death. In short it was held by this Court that Manki Bahu was not competent to execute the will of 1893 and, accordingly, this Court passed a decree declaring that the compromise and the decree of 1896 were not binding on Sohan Bibi 'in so far as they affected the village Shivdasa and the houses mentioned in the plaint'. The claim of Sohan Bibi as regards moveables and for the appointment of a receiver was dismissed. The defendants preferred an appeal before His Majesty in Council against the decree of the High Court. In the grounds of appeal all the findings of the High Court were challenged and it was urged inter alia that the compromise of 1896 was entered into for the purpose of settling doubtful claims and Bindeshri was competent to enter into the same, and, as such, the compromise was valid and binding on Sohan Bibi. The appeal was heard and decided by their Lordships of the Judicial Committee on 24th April 1914. The respondent was not represented by counsel before their Lordships. The judgment of their Lordships was as follows:
In this case their Lordships are of opinion that the facts bring it within the decision of Khunni Lal v. Gobind Krishna Narain (1911) 38 IA 87; in other words, that the compromise in question is in no sense of the word an alienation by a limited owner of the family property, but a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent, and by way of compromise, admitted by the other parties.
14. The appeal was accordingly allowed and Sohan Bibi's claim was dismissed. Bindeshri Bahu died in the year 1916 and then Sohan Bibi and Mohan Bibi became entitled to the possession of the estate of Parshotam Das if any. Mohan and Sohan executed a deed of surrender on 16th April 1926, in favour of the next reversioners, viz., the plaintiff-appellants, who are the sons of Sohan Bibi. The plaintiffs then filed the suit giving rise to the present appeal for recovery of possession of the immovoable and moveable properties which according to the allegations contained in the plaint belonged to Parshotam Das. The plaintiffs maintained that the wills executed by Manki Bahu and the compromise decree passed in the suit of 1895, and also the decree passed in the suit filed by Sohan Bibi, were void and ineffectual as against them. They alleged that the defendants to the suit of 1906 obtained an ex parte decree from the Privy Council by 'colluding with and practising fraud and deceit' on Sohan Bibi, and as the decision of the Privy Council 'was due to neglect, want of prosecution and collusion on the part of defendants 2 to 6' (i. e., the daughters of Harish Chandra and Sohan Bibi), the same was not binding on the plaintiffs and could not prejudicially affect their right to possession of the properties in dispute.
15. The details of alleged fraud were not given in the plaint, but these details were-furnished by Baldeo Das, one of the plaintiffs' witnesses, in his statement recorded by the learned Subordinate Judge under Order 10, Rule 1, Civil P.C., before the settlement of issues. His case was that after this Court decreed the claim of Sohan Bibi as regards immoveable properties negotiations for a compromise commenced between the parties to the suit and that B. Baijnath Das, one of the defendants of that suit who was looking after the case on behalf of all the defendants, asked .Sohan Bibi not to contest the appeal which was pending before their Lordships of the Privy Council holding out the assurance that he would have the appeal dismissed for default after the compromise. Baldeo Das stated that a compromise was made 2 or 3 months before the decision 'of the Privy Council appeal and Baijnath Das assured Sohan Bibi and her Pairokars that he would write 'a letter to the attorneys to the effect that a settlement has been made and that the appeal should be got dismissed,' and that because of this assurance no steps were taken by Sohan Bibi to defend the appeal in the Privy Council. The terms of the compromise according to Baldeo Das were that the defendants to Sohan Bibi's suit were to deliver possession of all the properties to Sohan Bibi on payment of Rs. 24,000 which sum was to be raised by a mortgage of those properties. The terms of the compromise, viz. the payment of money and delivery of possession of the properties, were to be carried into effect after the dismissal of the appeal The plaintiffs characterised the compromise of 1896 as collusive and alleged that as it amounted to an alienation of the properties in dispute by Bindeshri Bahu. who had only a life interest, it was not binding on the reversioners, and further that as the compromise was based on the wills executed by Manki Bahu, which were void, the compromise itself was Invalid.
16. The validity of the wills was challenged by the plaintiffs on the broad ground that after the adoption of Parshotam Das Manki Bahu had no interest left in the properties of Harish Chandra and was, therefore, not competent to make a testamentary disposition of the same. The suit was contested by defendants 1 to 4, viz. by Sri Thakurji, Punno Bibi, Baij-nath Das, son of Mukandi Bibi, and Krishna Das, son of Hiran Bibi. They contended that Sohan Bibi had no right So the properties in dispute and the deed of surrender relied upon by the plaintiffs was not validly executed by them; that Manki Bahu was not authorised by Harish Chandra to make an adoption and She adoption of Parshotam Das was invalid; that Manki Bahu remained in adverse proprietary possession of the properties left by Harish Chandra all through and was competent to make the wills; that She will of 1871 was executed by Manki with the consent of Parshotam and was all along acted upon by Parshotam and his widow, and that the compromise decree of 1896 was valid and binding on the plaintiffs. The contesting defendants denied the allegations of fraud and collusion made by the plaintiffs and asserted that the decision of their Lordships of the Privy Council in Sohan Bibi's suit was binding on the plaintiffs and operated as res judicata in the present suit.
17. The learned Subordinate Judge adopted the findings recorded by this Court in Sohan Bibi's case on the question of adoption of Parshotam, and of the wills executed by Manki and her alleged adverse proprietary possession. In other words the contention of the defendants on these points was overruled by the learned Subordinate Judge. He however held that the compromise of 1896 was valid and binding on the plaintiffs and the allegations of the plaintiffs as regards collusion and fraud were unfounded and the decision of their Lordships of the Privy Council in Sohan Bibi's case operated as res judicata. As a result of these findings the learned Judge dismissed the plaintiffs' suit. (His Lordship then considered evidence regarding fraud and held that fraud was practised on Sohan Bibi, during the pendency of the Privy Council appeal, and the decision of their Lordships did not operate as res judicata in the present litigation, and proceeded). There is yet another answer to the contention of the defendants that the decision in Sohan Bibi's suit is res judicata as against the plaintiff-appellants. The idol Sri Thakurji, who is defendant 1 in the present suit, was not a party in the suit of Sohan Bibi. The defence put forward in the present suit by the contesting defendants, viz., defendants 1 to 4, was that village Shivdasa and the bari haveli were endowed properties. To the same effect is the statement of Baijnath Das defendant, vide p. 59, lines 34 and 35.
18. The contesting defendants in Sohan Bibi's suit were sued not as managers or Shebaits of Sri Thakurji, but in their personal capacity. They in no sense represented Sri Thakurji in Sohan Bibi's suit. The matter that is in issue between the plaintiffs and defendant 1 in the present suit was not directly and specifically in issue in Sohan Bibi's suit. It follows that the decision in Sohan Bibi's suit does not bar the trial as between the plaintiffs and Sri Thakurji of the question as to whether or not the plaintiffs are entitled to possession of bari haveli and village Shivdasa. The view that we take is supported by the decision of their Lordships of the Privy Council in Radha Biuode Mandal v Gopal Jiu Thakur 1927 25 ALJ 681. The learned Counsel for the respondents placed reliance on the decision in Jagadindra Nath Roy v. Hemanta Kumari Debi (1905) 32 Cal 129 It was held in that case that the right to the possession and management of dedicated properties belongs to the Shebait who has a right to bring suits for protection of the property and that the right of suit is vested in the Shebait and not in the idol. This case is distinguishable from the case before us on the broad ground that the contesting defendants in the suit of Sohan Bibi, were not sued in their capacity as Shebaits.
19. It was also argued on behalf of the plaintiff-appellants that the suit brought by Sohan Bibi, was not a representative suit, and therefore the plaintiffs are not bound by the decision in that suit. Two reliefs were prayed for by Sohan Bibi: (1) that the transfer of the property affected by the compromise of 1896 be declared to be null and void after the death of Bindeshri Bahu 'so far as it is prejudicial to the plaintiffs' rights,' and (2) that a receiver be appointed for the proper management and protection of the property in suit. It is urged on behalf of the plaintiffs that the first relief prayed for by Sohan Bibi leaves no room for doubt that she brought the suit not in a representative capacity but for the protection of her own rights. Nevertheless, in view of the decision of their Lordships of the Privy Council in Venkatanarayan Pillai v. Subbammal 1915 38 Mad 406, and Kesho Prasad Singh v. Sheo Pargash. Ojha 1924 23 ALJ 168, we are bound to and overrule this contention of the plaintiff-appellants. It follows from what has boon stated above that the question whether the compromise of 1896 entered into by Bindeshri Bahu is or is not binding on the plaintiffs is an open question and must be decided in the present case. The defendant-respondents question the right of the plaintiffs to maintain the present suit on the ground that even though the decision in Sohan Bibi's suit may not be binding on the plaintiffs it was binding as between Sohan Bibi and the defendants, and therefore the plaintiffs could not sail clear of the binding nature of the decision during Sohan Bibi's lifetime. The defendants also challenged the validity of the deed of surrender on the ground that the surrender was not bona fide and that as it was for consideration it was invalid.
20. It is settled law that where a widow after alienating a portion of her husband's estate without legal necessity surrenders the whole of her interest in the estate to the next reversioner, the reversioner is not entitled to immediate possession of the portion so alienated but must wait for possession until her death. The reason for this rule is that though the reversioner is not bound by the alienation made by the widow the widow herself is bound by the alienation during her lifetime, and as such, the possession of the transferee cannot be disturbed so long as the widow is alive. But this rule, in our judgment, has no application to the case before us. Here we are not concerned with any alienation made by Sohan Bibi. On the surrender being made by Sohan and Mohan the estate of Parshotam Das, if any, immediately vested in the plaintiffs and as the decision in Sohan Bibi's, suit is not binding on them they are entitled to maintain the suit. The surrender made in favour of the plaintiffs is, in our opinion, a bona fide surrender. No portion of the estate was reserved by Sohan and Mohan for themselves and by executing the deed of surrender they effected their complete effacement. In support of his contention that as the relinquishment or the surrender by Sohan and Mohan, was for consideration it was invalid, the learned Counsel for the respondents placed reliance on the decision in Sm. Prafulla Kamini Roy v. Bhabani Nath Roy 1926 Cal 1211. It was held in that case that a surrender which is a mere device for dividing the property or 'for transferring it for valuable consideration is invalid.' It appears from the recital in the deed of relinquishment executed by the two ladies (p. 285 of the record) that a sum of Rs. 4000 was paid to them for their maintenance by the plaintiffs. This payment, if made was more really in the nature of a provision being made for the maintenance of the two ladies and not consideration for the surrender made by them.
21. In short we are satisfied that the deed of surrender is valid and the present suit is maintainable. We now proceed to consider the question whether the compromise and the decree passed in accordance with the same in 1896 is binding on the plaintiffs and disentitles them to the reliefs sought for by them. As it has been decided by their Lordships of the Privy Council that the compromise entered into by Bindeshri Bahu in the suit filed by Punno Bibi was 'in no sense of the word an alienation by a limited owner of the family property, but a family settlement....' we are bound by that decision and the decision can be 'reviewed if a proper case is made out only by their Lordships. But as the matter has been argued at length before us we deem it our duty to note the respective arguments of the parties on the point. It is urged on behalf of the appellants that if Sohan Bibi was not prevented from defending the appeal in the Privy Council because of the fraud perpetrated on her by Baijnath Das and if all the facts had been put before their Lordships their Lordships would not have held the compromise to be binding on the reversioners of Parshotam. In this connexion reference is made to the notes of the arguments addressed to their Lordships reported in Mt. Hiran Bibi v. Mt. Sohan Bibi 1914 18 CWN 929 at p. 932, and it is pointed out that it was not brought to their Lordships' notice that the compromise entered into by Bindeshri Bahu was not for the benefit of Parshotam's estate but for her own personal advantage. It is argued that Bindeshri Bahu was in the suit of 1895 laying a claim to the properties in dispute not as representing the estate of Parshotam but in her own right.
22. It is therefore maintained by the learned Counsel for the appellants that the compromise was not a family settlement and could not bind the reversioners. In support of these contentions reliance has been placed by the learned Counsel on the decisions of their Lordships in Nugenderchunder Ghose v. Sreemutty Kaminee Dossee (1866) 11 MIA 241 and Ramsumran Prasad v. Shyam Kumari 1922 PC 356. It was held in the last mentioned case that a compromise made bona fide for the benefit of the estate and not for the personal advantage of the limited owner will bind the reversioners quite as much as a decree on compromise. To the same effect is the decision of this Court re-ported as Nirman Bahadur v. Fateh Bahadur 1929 52 All 178, and of the Patna High Court in Janak Kishori Kuar v. Babu Debi Prasad Singh 1917 2 PLJ 370. It is a fact that in the litigation of 1895 Bindeshri Bahu claimed to be entitled to the properties left by Parshotam Das as an absolute owner of the same and was thus putting forward a title that was peculiar to her and not in common with the other reversioners. She cannot therefore be said to have been litigating in a representative capacity in the suit of 1895. On the other hand it is argued on behalf of the defendant-respondents that the compromise entered into by Bindeshri Bahu was a bona fide settlement of a disputed claim and it was binding not only on Bindeshri Bahu but all the reversioners of Parshotam. It is said that the plea put forward by Bindeshri Bahu in her written statement in the suit of 1895 that she was the absolute owner of the properties left by Parshotam Das was in consequence of a will executed by Parshotam Das on 9th December 1883, by which he devised absolute proprietary interest in favour of Bindeshri Bahu. It is therefore contended that Bindeshri Bahu was perfectly justified in not only claiming the property as an absolute owner but also by virtue of the compromise taking the property reserved for her as an absolute owner. The argument is that, notwithstanding the fact that Bindeshri Bahu was claiming the properties as an absolute owner by virtue of the alleged will of Parshotam Das, she represented Pashotam's estate in the litigation of 1895.
23. The alleged original will of Parshotam Das was not produced in the present case and the defendants relied on a certified copy of the alleged will (p. 135 of the record). The will of Parshotam Das was not pleaded in the written statement and no issue on the point was raised in the Court below. The execution of the will by Parshotam Das was denied by the plaintiff-appellants and no evidence was called by the defendants to prove the execution of the will by Parshotam Das. It is said that the original will was summoned from the plaintiffs and as the plaintiffs did not produce the same the certified copy was admissible in evidence. There are various answers to this contention. There is nothing to show that the alleged original will ever came in the possession of Bindeshri Bahu or her daughters or the present plaintiffs. No evidence was led by the defendants to prove that the original will was lost. Further no attempt was made to summon the record of the suit of 1895 with a view to ascertain whether or not the original will of 1895 was produced in that case by Bindeshri Bahu. Baijnath Das was cross-examined on the point and his statement was as follows:
The original will of 1883, which was executed by Parshotam Das, must be with Bindeshri Bahu, Sohan Bibi, etc. I did not enquire from the registration office to whom it was given or whether it was destroyed. I did not search for it in the records of any cases which were fought in the family. I cannot give any reason why no reference to this will is made in the will of Manki of 1893. I cannot give any reason why the will of 1883 was not mentioned in the suit of 1906 and in the present case. It was the look out of the lawyers (p. 63 of the record).
24. In view of the fact that the loss of the orginal will was not proved, nor was the same shown to be in the possession of or under the control of the plaintiffs, secondary evidence was inadmissible and the certified copy of the will could not be admitted in evidence. Apart from this 'there being no evidence to prove the execution of the will by Parshotam Das no presumption of genuineness could be made so far as the certified copy of the will was concerned, vide Basant Singh v. Brij Raj Saran Singh 1935 ALJ 847. The execution of the will by Parshotam Das cannot be proved by the registration endorsement. We must therefore hold that it was not proved that Parshotam, executed a will by which he devised absolute estate in favour of Bindeshri Bahu. Even if it be assumed that Parshotam executed a will in 1883, we for the reasons assigned by this Court, in its judgment dated 6th April 1921, in Sohan Bibi's suit (p. 263 of the record), are inclined to the view that the will was revoked by Parshotam Das. It follows that the claim put forward by Bindeshri Bahu in the suit of 1895 that she was the absolute owner of the properties left by Parshotam was unfounded and was adverse to the interest of the reversioners of Parshotam.
25. It has also been argued on behalf of the defendant-respondents that Manki Bahu all along remained in adverse possession of the properties left by Harish Chandra and thus acquired an absolute title to the same. She was therefore competent to execute the will of 1871 and 1893 and neither Bindeshri Bahu nor the daughters of Parshotam had any title to the estate. It is therefore contended that the compromise entered into by Bindeshri Bahu was under the circumstances a reasonable compromise. In order to substantiate the plea of adverse possession reliance has been placed on a certified copy of a receipt alleged to have been executed by Parshotam Das on 29th March 1881 (p. 131 of the record). The plaintiffs did not admit the execution of this receipt by Parshotam and here again no foundation was laid by the defendants for the admission of secondary evidence. Further there was no evidence to prove the execution of the receipt by Parshotam Das. As the original receipt was not produced no presumption of genuineness could be made under Section 90, Evidence Act.
26. The plea of adverse possession need not; detain us long. Manki Bahu was the adoptive mother of Parshotam and even if she remained in possession of the properties in dispute her possession must in the absence of proof to the contrary be deemed to be on behalf of Parshotam, Further, as we have already observed, there is no evidence in the present case to show as to who remained in actual possession of the property between 1871 and 1883 when Parshotam Das died and between 1883 and 1893, the year in which Manki Bahu died. The validity of the adoption of Parshotam was also contested by the defendant respondents. But we have no hesitation in adopting the finding of the learned Subordinate Judge on the point. As it has been held by their Lordships of the Privy Council that the compromise of 1896 is a family settlement the present appeal must fail, but in considering the question of costs we cannot overlook the fact that on almost all the disputed questions of fact raised in the case we have accepted the case put forward by the plaintiffs, and as such we consider it unjust to order the plaintiffs to pay the costs of the defendants.
27. In the result we dismiss this appeal but direct the parties to bear their own costs of this Court and of the Court below.