Karamat Husain, J.
1. The following pedigree will show the relationship of the members of the family:
Bhagwan Rai Ram Niranjan Rai
Ramesar Rai= |
Musammat Batasi ________________|
(died issucloss). |
| | | |
Rambaran Daulat | Thakur
| | |
| | Ram Sewak
Mamgla Rai= | |
Musammat Jamna Kaur | |
(defendant IV) | |
Har Prasad |
Har Sewak |
| | |
Santu Rai Gajadhar Rai |
Suraj Deo Rai Rajma Rai
2. The facts or the case are as follows: On the death of Ramesar Rai, his widow Musammat Batasi applied for mutation of names in her favour in respect of the zamindary and sir. The application was resisted by the sons of Ram Niranjan Rai. Musammat Batasi and the sons of Ram Niranjan Rai entered into a compromise which is dated the 21st August 1876, whereby the zamindary property was put into the possession of the objectors and the sir comprising 21 bighas, 8 biswas and 9 dhurs with some other property and dues was retained by Musammat Batasi. Musammat Batasi was to hold possession of the said sir like her husband free of rent and her name was to appear in the revenue papers as an owner. The agreement further provided that Musammat Batasi would have no right to transfer the property or to raise a debt on it and that the objectors after the death of Musammat Batasi and Musammat Ureha would take possession of the said sir. After the above compromise, a partition took place amongst the objectors on the 17th of May 1900 and out of the above sir 10 bighas were allotted to Daulat and Ram Baran and the remainder to the other members of the family. The finding of the lower appellate 'Court is that Musammat Batasi was alive on the 17th May 1900 and that she died in 1902.
3. After the death of Musammat Batasi, Musammat Jamna, daughter-in-law of Daulat, took possession of the two plots in suit, that is, Nos. 989/1 and 989/3 and gave a lease of those plots to the defendants Bansu, Mahadeo and Dwarka.
4. The plaintiff Ram Baran Rai, who is admittedly the actual reversioner of Ramesar, the husband of Musammat Batasi, instituted the suit for the possession of those two plots on the allegation that the defendants had taken possession of those plots unlawfully. The suit was resisted by the defendants on the ground that those two fields were leased to them by Musammat Jamna who got them under the compromise of the 21st August 1876 and the partition of the 17th. May 1900. The Court of first instance dismissed the claim and its decree was affirmed by the lower appellate Court. The lower appellate Court in its judgment held the compromise of 1876 to be a valid compromise. It said: 'in the compromise of 1876, it was distinctly agreed upon that the widow should not have the power of transfer and that her husband's cousins would resume the grant on her death. This was a valid agreement. It was within the widow's power to accelerate the succession of her nearest reversioners and she did so. Of course, she remained in possession of 24 bighas included in the zamindar, she transferred but it was not as a proprietor but as the holder of a maintenance grant. This land also passed to Jamna Kuar's father-in-law but possession of it was deferred according to the terms of the compromise until the death of the widow. That Ram Baran and his brothers had entered into such a contract is evidenced by their conduct in partitioning the land at a perfect partition in 1900. Then, too, plaintiff and his nephews filed a compromise repeating the contract of 1876. At the partition, 10 bighas were allotted to plaintiff and his nephew Jamna's husband and 14 bighas to the sons of his other two brothers. It is too, late for the plaintiff to urge that Musammat Batasi was in possession of the 24 bighas in succession to her husband. She relinquished her life-interest in favour of her husband's reversioners, who divided the property amongst themselves and gave a maintenance grant to the widow out of it. That grant has reverted to all the grantors and plaintiff alone has no title to the same.' The plaintiff has preferred a second appeal to this Court and the following pleas are taken: (1) That the possession of Musammat Batasi was that of a Hindu widow. (2) That the terms of the compromise dated the 21st August 1876 and the partition dated the 17th May 1900 cannot alter the character of the widow's estate in the sir held by her. A.W.N. (1906) 272 : 3 A.L.J. 755 That the plaintiff as the actual reversioner is entitled to recover the two plots in possession of the defendants. (4) That in any case a decree for joint possession should be given to the plaintiff.
5. The decision of this case, in my opinion, turns upon the construction to be put on the compromise, dated the 21st August 1876 and upon the effect of it on the nature of Musammat Batasi's rights in 24 bighas of the sir. The widow by that compromise, as I read it, relinquished her entire estate as a Hindu widow in the zamindary of her husband in favour of his presumptive reversioners but reserved to herself the sir which belonged to her husband. There is nothing within the four corners of that compromise to show that the widow relinquished any portion of her rights in the sir which she received as a Hindu widow's estate from her husband, in favour of those presumptive reversioners. This being the interpretation which 1 place on the compromise, it follows that the presumptive reversioners by virtue of the widow's relinquishment became the absolute owners of the zamindary See Behari Lal v. Madho Lal Ahir Agarwal 29 C 236 at p. 241; Hem Chander Sanyal v. Sarnomai Debi 22 C 355; Raj Kishore v. Durga Charan Lal A.W.N. (1906) 272 : 3 A.L.J. 755. Musammat Batasi, however, did not relinquish her interests in the sir and she must, therefore, be deemed to have held possession of it as the widow of Ramesar and not as a grantee from the reversioners.
6. The sir in question was, therefore, in the possession of Musammat Batasi as a Hindu widow and must devolve after her death on the actual reversioner of her husband. The plaintiff is admittedly the actual reversioner of Batasi's husband and is undoubtedly entitled to the plots in dispute.
7. It is, however, contended that the agreement entered into by the sons of Ram Niranjan in the compromise of the 21st of August 1876 to divide the sir on Batasi's death in certain shares and the actual partition thereof in 1900 are binding on him and that he could not claim more than what he got under the partition. There is no substance in this contention. Musammat Batasi, who was in possession of the sir as a Hindu widow, was alive when the partition of the sir took place in 1900 and the plaintiff had no vested interest in it. All that he had was a naked possibility which, as laid down by the Lords of the Judicial Committee in Sham Sundar Lal v. Achhan Kunwar 25 I.A. 183 at p. 180 : 21 A. 71 and followed by me in Fayazul Rahman v. Muhammad Usman 2 Ind. Cas. 865 he could not bind. That being the case the agreement and the partition cannot estop the plaintiff. The result is that I allow the appeal, set aside the decrees of the Courts below and give the plaintiff a decree for the exclusive possession of the two plots claimed with costs which in this Court will include fees on the higher scale.