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Janeshar Das Vs. Phulwanti Kunwar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1924)ILR46All575
AppellantJaneshar Das
RespondentPhulwanti Kunwar
Cases ReferredRani Nctoa Kuwar v. Rani Hulas Kuwar
Excerpt:
hindu law - joint hindu family--partition--compromise--minor--effect of compromise entered into on behalf of a minor by his guardian ad litem--will--construction of document--clause limiting power of adoption. - - in lieu of her share she accepted an arrangement for maintenance by which each son was to put her in possession of certain items of property out of the shares allotted to him in order that she might enjoy an income of rs. 24. turning now to the will which was made by lala paras das, it appears that the testator purported to dispose of this property as well as the ancestral property of the family. the judge of the court below says in his judgment that the high court in that case distinctly found that the property which came to paras das from pardaman kunwar was self-acquired.....lindsay, j.1. the plaintiff in the suit out of which this appeal has arisen is one lala janeshar das and the defendant musammat phul kunwar alias phulwanti kunwar is the widow of the plaintiff's deceased brother lala badri das.2. the father of the plaintiff and lala badri das was one lala paras das, who died on the 2nd of may, 1903. paras das, in addition to the plaintiff and badri das, left another son named dharam das who died several years before the present suit was brought.3. at the time of their father's death badri das and janeshiar das were minors.4. on the 16th of november, 1902, lala paras das executed a will dealing with all the property belonging to himself and to the joint family. he executed a codicil to this will on the 12th of march, 1903, and a second codicil on the 17th.....
Judgment:

Lindsay, J.

1. The plaintiff in the suit out of which this appeal has arisen is one Lala Janeshar Das and the defendant Musammat Phul Kunwar alias Phulwanti Kunwar is the widow of the plaintiff's deceased brother Lala Badri Das.

2. The father of the plaintiff and Lala Badri Das was one Lala Paras Das, who died on the 2nd of May, 1903. Paras Das, in addition to the plaintiff and Badri Das, left another son named Dharam Das who died several years before the present suit was brought.

3. At the time of their father's death Badri Das and Janeshiar Das were minors.

4. On the 16th of November, 1902, Lala Paras Das executed a will dealing with all the property belonging to himself and to the joint family. He executed a codicil to this will on the 12th of March, 1903, and a second codicil on the 17th of April, 1903.

5. The will and the codicils were deposited in the office of trie District Begi&trar; of Saharanpur and were opened in the presence of one Girdhari Lal on the 9th of May, 1903. Girdhari Lal, under the will of Paras Das, had been appointed the guardian of his two minor sons Badri Das and Jaaeshar Das and it is proved that Girdhari Lal was a witness to the first and second codicils though he does not appear to have witnessed the will of the 16th of November, 1902.

6. On the 15th of June, 1903, Dharam Das, the eldest son of Paras Das, filed a suit for partition in the court of the Subordinate, Judge of Saharanpur. That suit was numbered as suit No. 96 of 1903 and a certified copy of the plaint, Ex. C, is to be found at page 135 of the printed record.

7. The original defendants to this suit were the two minor brothers of the plaintiff, and when the suit was first instituted, their mother Musammat Rohli Kunwar was appointed as their guardian ad litem for the suit. Rohli Kunwar, however, asked to be joined as a defendant to the suit in order that she might; establish her right as a Hindu widow to a share on partition. Her application to be made a defendant was accepted and the consequence was that Girdhari Lal Was appointed the guardian ad litem of one of the minors Badri Das, whilst one Jambu Das was appointed the guardian ad litem of the other minor Janeshar Das.

8. The defendants to this partition suit did not put in any written statement; but, on the 17th of July, 1903, a petition of compromise was put in before the Subordinate Judge and on the same date applications were made by Girdhari Lal and Lala Jambu Das for permission to engage in the compromise on behalf of the minor defendants.

9. The original record of this partition suit was before the court below in this case and has been produced before us, and it appears that this petition of compromise, after having been put into court on the 17th of July, 1903, was ordered to be put up again on the 23rd of July, 1903. The case was not taken up on that date but on the following date, namely, the 24th of July, 1903, and on that date the Subordinate Judge made a record of his proceedings which is to be found in Ex. F at page 151 of the printed record.

10. At the present stage it is not necessary to describe in detail what was done with reference to this petition of compromise. It is sufficient to say that on the date in question, that is to say, the 24th of July, certain items of zamindari and house property were allotted to the three sons of Lala Paras Das. Bots were drawn in. the presence of the court and in the presence of the guardians and the pleaders who were concerned.

11. The learned Subordinate Judge then proceeded to make an order for the appointment of a commissioner who was to arrange for the division of the rest of the family property, including movables, debts etc., and ultimately on the 19th of December, 1904, a complete division of all the property having been effected, a final decree in the partition suit was drawn up. A copy of this, Ex. A, is to be found at page 209 of the printed record. This decree embodies the compromise arrived at on the 17th of July, 1903 and describes in detail the various properties allotted to each of the parties.

12. It may be noted here that after the lots relating to the ziamindari property were drawn on the 24th of July, 1903, applications were made to the revenue court by the various parties in order to obtain mutation, and there are on the record several copies of the orders which were passed showing that mutation in respect of the revenue-paying property was made in favour of one or other of the sons. The orders purport to have been based on the title of the sons by way of inheritance and partition.

13. There can be no doubt that the parties got possession of these properties immediately after the 24th of July, 1903, and remained in possession in accordance with the decree.

14. It has been mentioned already that Musammat Rohli Kunwar had applied to be made a party in the partition suit in order that she might claim the one-fourth share which she was entitled to have under the Hindu law. The decree, however, shows that no fractional share of her deceased husband's property was allotted to her. In lieu of her share she accepted an arrangement for maintenance by which each son was to put her in possession of certain items of property out of the shares allotted to him in order that she might enjoy an income of Rs. 1,200 per annum. The arrangement was that on the death of the lady these items of property were to revert to each of her sons. There was a further arrangement provided by the decree for the lady's residence if she elected not to live with one or other of her sons.

15. Since the time this partition decree was made, Dharam Das has died. In the month of November, 1903, Dharam Das wife, Musammat Bachcho Kunwar, brought a suit against her husband for possession of certain items of property comprised in the shares allotted to him under the partition decree. She lost her suit in the court of first instance; but in appeal she got a decree from this Court (see the copy of High Court's decree Ex. 5 at page 229 of the record). The date of Ms decree was the 15th of January, 1906.

16. Musammat Bachcho Kunwar is still alive and in possession of the property which she obtained under this decree and is also in possession of whatever was left of the rest of the share allotted to Dharam Das at the time of the partition. It is in evidence that a great deal of the property which Dharam Das got on partition was alienated either during Ms life-time or affer his death for the purpose of satisfying his debts.

17. Dharam Das, it is to be mentioned here, died without leaving any male issue.

18. The second son Badri Das died in the month of April, 1920, leaving a widow, the present defendant appellant and a daughter. He left no male issue.

18. Having recited these facts by way of introduction, I turn now to the nature of the claim in the present suit.

19. The property in suit is a portion of certain property which came to Lala Paras Das in the following way: it appears from a pedigree which is set out at page 54 of the printed record that one Pardaman Kunwar was a collateral relation of Dala Paras Das. He and Paras Das were descended from a common ancestor, one Lala Din Dayal.

20. Pardaman Kunwar died possessed of an estate. He left no male issue and the result was that on his death the property came into possession of his mother Musammat Jawantri Kunwar. This lady died on the 25th of June, 1898. Thereupon a suit was brought by Lala Paras Das and his cousin Lala Umrao Singh for possession of the property which had belonged to Pardaman Kunwar. This was suit No. 1 of 1898 instituted in the court of the District Judge of Saharanpur on the 6th of August, 1898.

21. That suit was contested by a minor named Dip Chand who resisted the claim on the ground that he had been taken in adoption by Musammat Jawantri Kunwar. The plaintiffs in that suit denied the adoption and laid claim to the whole of the property as being collateral heirs of equal degree. Bach of them claimed one-half of the entire estate of Pardaman Kunwar. The claim was valued at Rs. 6,60,000.

22. A compromise was arrived at between the parties and the decree of the court of the District Judge is to be found at page 51 of the record. It is marked Ex. 6. Roughly speaking, the result of the decree was to give to each of the plaintiffs, namely, Paras Das and Umrao Singh, a 4 anna share in the immovable estate of Pardaman Kunwar. The remaining moiety was to become the property of the minor defendant Dip Chand.

23. The value of Paras Das share came, therefore, to about Rs. 1,65,000, and it is this property which is referred to by Paras Das in his will as the property he inherited from Pardaman Kunwar. In referring to this property I shall describe if in this judgment as the Pardaman Kunwar property.

24. Turning now to the will which was made by Lala Paras Das, it appears that the testator purported to dispose of this property as well as the ancestral property of the family.

25. It was the desire of the testator that after his death the whole property, that is to say, the ancestral property and the Pardaman Kunwar property should be divided in equal shares among his three sons, and in order to secure a fair division of the property and to avoid disputes afterwards at the time of partition, Paras Das drew up certain lists of the immovable property and expressed his desire that the property should be divided in accordance with the scheme of division set out by him in the will.

26. He drew up three lists of the zamindari property and three other lists of house property and directed that lots should be drawn for the purpose of awarding their due shares of each kind of property to the three sons.

27. In the present suit the plaintiff Janeshar Das, treating this will as being a valid document in so far as it purports to dispose of the Pardaman Kunwar property--this being according to the plaintiff's case the self-acquired property of Lala Paras Das--claims that, on the death of Badri Das his brother, he is entitled to get the property in suit which was in Badri's possession, and for this purpose he relies upon Clause 13 of the will to which reference will hereafter be made.

28. It is to be understood that the claim of the plaintiff is confined to that portion of the immovable property originally belonging to Pardaman Kunwar which was allotted to Badri Das under the partition decree.

29. Such being the nature of the plaintiff's claim, I turn now to the defence to the action which was set up by Musammat Phulwanti Kunwar, the defendant.

30. She pleaded in the first instance that the will upon which the plaintiff was relying was invalid inasmuch as the entire property described in the will was joint ancestral property over which Lala Paras Das had no disposing power. She next pleaded that in any case the direction contained in Clause 13 of the will was invalid inasmuch as it purported to lay down a scheme of devolution contrary to the Hindu law of inheritance. The third plea was that, effect having been given to the partition decree and the position of the parties having been altered, it was no longer competent to the plaintiff to rely upon the will and ignore the partition decree. She further set up a defence that being still competent to make an adoption to her husband, Clause 13 of the will upon which the plaintiff was relying could not be enforced. And lastly she took up the line that after the death of Lala Paras Das, the sons had ignored the will and had made a division of the entire property which had been carried out under the decree of a competent court passed upon a compromise. She pleaded that the plaintiff was not entitled to go behind the decree which was made in December, 1904, 16 years before the suit, and that he was not entitled, therefore, to maintain the present suit.

31. The Subordinate Judge overruled the pleas for the defence and has decreed the plaintiff's claim.

32. He has found that the Pardaman Kunwar property was the self-acquired property of Paras Das and that he was entitled to dispose of it by will. The execution of the will was proved (and this is not a matter in dispute in this Court). The Subordinate Judge was further of opinion that the decree in the partition suit was no bar to the maintenance of the present suit, holding that the compromise which was embodied in the decree was not binding upon the minor parties because the leave of the court had not been sought and obtained by those who were representing the minor defendants in that litigation as guardians ad litem. A further ground upon which he held the decree not to be binding was that the Subordinate Judge who decided the partition suit could not and did not purport to deal with or adjudicate upon what the court below describes as 'the reversionary rights of the minor defendants.' The learned Judge was further of opinion that the altered situation of the parties which was created by this partition decree could not stand in the way of the plaintiff's claim in this case so as to deprive him of his right under the will to recover the property in suit. And, lastly, on his interpretation of Clause 13 of the will, he held that the plaintiff was entitled to a decree.

33. These findings of the court below are challenged in appeal.

34. I think it will be convenient to deal first with the issue raised in the first ground taken in the memorandum of appeal.

35. The plea is that the court below was wrong in Holding that the property which originally belonged to Pardaman Kunwar and which came into the possession of Lala Para's Das was his self-acquired property. It is pleaded that on the evidence it is established that this property was acquired by Paras Das with the aid of joint family funds and that in any case it had been thrown by him into the common stock, the result being that he was not competent to dispose of this property by will.

[His Lordship then discussed the evidence and proceeded.]

36. In the court below the decree of the High Court which was passed in the appeal brought by Musammat Bachcho Kunwar against her husband Dharam Das (Ex. 5 at page 229) was put forward on behalf of the plaintiff as evidence for the purpose of showing that the Pardaman Kunwar property was the self-acquired property of Liala Paras Das. The Judge of the court below says in his judgment that the High Court in that case distinctly found that the property which came to Paras Das from Pardaman Kunwar was self-acquired property and had never been treated as joint family property. The learned Subordinate Judge goes on to say that the decision of the High Court is the best guide in this case.

37. I take it, therefore, that the learned Judge of the court below admitted this judgment in evidence against the defendant. It has been argued before us, and in my opinion rightly, that this judgment was not admissible as evidence. It clearly was not a judgment inter partes nor is it claimed that the judgment could in any way operate as res judicata. On the other hand, it has been contended on behalf of the respondent here that the judgment is admissible under Section 13 of the Indian Evidence Act and reference is made to the doctrine laid down in the Full Bench case of The Collector of Gorakhpur v. Palakdhari Singh (1889) I.L.R. 12 All. 1.

38. Speaking for myself, I cannot accept the contention that there is anything in that ruling which would justify the acceptance of the High Court's judgment in this case as evidence relevant to the issue, that issue being whether the Pardaman Kunwar property was acquired at the expense of the joint family funds or not. I do not think that any statements relating to the entries in the account books contained in the judgment of the High Court are receivable in evidence upon this issue.

39. It is quite true that we may look at this earlier judgment of the High Court as a guide to the principles which should be observed in applying rules of law to particular facts, but I cannot, treat as admissible in this suit any statements contained in a judgment relating to a case in which the parties now before me were not concerned. That judgment is res inter alios acta.

40. We have, therefore, on this part of the case only the bare statement of Hardwari Lal which I am not prepared to accept as sufficient proof of the fact that the Pardaman Kunwar property was acquired by Paras Das with money borrowed from the firm, which he afterwards repaid. As I have mentioned, he is a servant of the plaintiff and, therefore, likely to be partial and he has to rely upon his recollection of some accounts which he had seen some 17 or 18 years before he gave evidence. It appears to me E>y no means improbable that the knowledge which Hardwari Lal displayed in. the witness-box in the court below was derived from the statement of facts contained in the High Court's judgment in the appeal in the case of Bachcho Kunwar v. Dharam Das Vide I.L.R. 28 All. 347, a copy of which, as I have stated, was admitted in evidence in the court below.

41. I think it safer to discard altogether the evidence of Hardwari Lal.

42. Pausing here, therefore, and considering the situation in the light of the evidence so far referred to, it seems to me that it must still be taken that the property which Paras Das undoubtedly acquired under a title as collateral heir was his self-acquired property.

43. It does not, however, follow that because the property when it first came into the hands of Paras Das was self-acquired property, it necessarily remained so, and here we have the further case for the defendant, namely, that there is satisfactory evidence on the record to show that after the property had been acquired by Paras Das it was dealt with by him as joint family property. In other words, it is claimed to be proved that Paras Das threw this property into the common stock.

44. As against this the plaintiff's case is that the same evidence shows that Paras Das never treated this property otherwise than his self-acquired property.

45. How does the evidence stand on this point?

[After reviewing the evidence the judgment proceeded.] ,

47. On a review of the whole of the evidence relating to this issue, I come to the conclusion that it cannot be said that there is any clear proof that before his death Paras Das threw this Pardaman Kunwar property into the common stock, and lit seems to me, therefore, that it being admitted in the first instance that this property having come to Paras Das by a title based upon collateral inheritance, the presumption that such property was his self-acquired property has not been overturned by any evidence which is available in this suit. I, therefore, find that the Pardaman Kunwar property at the death of Paras Das was still his self-acquired property.

48. I come now to deal with the second important question which arises for decision. This question is raised in different ways in the 2nd, 3rd, 4th, 5th and 6th grounds of the memorandum of appeal which relate to the effect of the decree passed in the partition suit on the 19th of December, 1904. As I have mentioned already, the broad case put by the defendant in the court below was that the existence of this decree was a bar to the present suit, and in the sixth ground of the memorandum of appeal the plea is taken that the Subordinate Judge was wrong in fact in holding that the leave of the court had not been sought and obtained, by the guardians ad litem of the, minor defendants in that suit, to the compromise which was ultimately embodied in the partition decree.

49. Before proceeding to discuss the effect of the decree in question, mention must be made of our order of the 29th of February, 1924, passed upon a petition presented to us on behalf of the defendant appellant for the admission of certain additional evidence relating to the question of fact whether the sanction of the court had been sought and obtained to the compromise which led up to the final partition decree.

50. In the order just referred to, we have given our reasons for admitting fresh evidence, and it may be said at once that this evidence clearly establishes that the two guardians ad litem of the two minor defendants in this partition suit (suit No. 96 of 1903), did inform the court that they proposed to enter into a compromise and did ask for leave to do so, and it is further established that on each of the applications presented by the two guardians ad litem, the Subordinate Judge recorded an order signed by him saying that the reasons for entering into a compromise were good and sufficient (wajah maqul hai) and that he accorded sanction in each instance.

51. In dealing with this question, therefore, I disregard as erroneous the statement made by the learned Judge of the court below that the permission of the court to enter into this compromise was not sought and obtained by the two guardians ad litem, Lala Girdhari Lal and Lala Jambu Das.

52. I proceed now to a consideration of the facts which, have to be dealt with in connection with this suit for partition. We have it in the first place that the suit was filed by Dharam Das, the eldest son of Paras Das, on the 15th of June, 1903, some six weeks after his father's decease (see plaint, Ex. C, page 135 of the printed record). It has already been mentioned that the original defendants were the two minor brothers of the plaintiff and that subsequently Musammat Rohli Kunwar, their mother, was impleaded as she was a necessary party, being entitled under the Hindu law to claim one-fourth share of the property. Mention has already been made of the appointment of Girdhari Lal and Lala Jambu Das as guardians ad litem to the minors Badri Das and Janeshar Das respectively. With regard to Lala Jambu Das it should be mentioned here that Girdhari Lal had been appointed the guardian of both the minors under the will executed by Paras Das and it must also be mentioned that Lala Jambu Das, who with the consent of Girdhari Lal was appointed guardian ad litem of Janeshar Das in the partition suit, was the maternal uncle of the girl who afterwards married Janeshar Das. Janeshar apparently was not married at the time the suit was brought. In his application to the court Jambu Das described himself as being a well-wisher and a relation of the minor.

53. It is clear that the plaint which was filed by Dharam Das in the partition suit makes no express reference to the will of Paras Das. It was stated in that plaint that Paras Das and his sons constituted a joint Hindu family at the time of the former's death and that the property sought to be divided was joint ancestral property.

54. In paragraph 8 of that plaint Dharam Das expressed his willingness to accept as his due share the properties mentioned in one or other of the several lists which were attached, to the plaint and he offered to accept a division by drawing of lots if the parties were agreeable; otherwise he stated that if a division was not made in the way so proposed, he would insist on the court's proceeding to divide the entire property so as to give him his share of one-third.

55. It must be mentioned here that the lists which were attached to Dharam Das's plaint corresponded exactly with the lists set out in the will of Paras Das; that is to say, there were three lists of the zamindari property and three corresponding lists of house property. So while it may be that there was no express reference to the will in the plaint, it is absolutely certain that Dharam Das and the other people who were concerned in this suit knew all about the will. I have already mentioned that the will had been deposited with the Registrar of Saharanpur and was opened by him in the presence of Girdhari Lal on the 9th of May, 1903, one week after the death of Paras Das. Girdhari Lal, as I have said, had been appointed guardian of both the minors under the will and he was also a witness to the two codicils. There can be no doubt whatever that Girdhari Lal knew all about the will and its contents and he has admitted as much before us when we examined him in this Court.

56. If is true that there is no direct evidence to show that Lala Jambu Das was cognizant of the will, and certain statement's made by Girdhari Lal before us might be taken to indicate that Jambu Das was not aware of the provisions of the will, but it appears to me that the circumstantial evidence in the case leads to the conclusion that the will and its provisions were well known to Dharam Das and to the two guardians ad litem. The recital in the petition of compromise which was filed in the court on the 17th of July, 1903, indicates that the question of the division of the estate had been considered by respectable members of the community and it is declared in the preamble of the petition that it was with a view to avoid disputes which would bring about the ruination of the family and would lead to many misfortunes that the decision to come to a compromise had been arrived at. I cannot doubt for a moment that the fact that Paras Das had left his will and the two codicils was perfectly well-known to all the members of the community who were consulted before this petition of compromise was brought before the Subordinate Judge.

57. The plaint was filed as above described and no written statements of defence were filed. On the 17th of July, 1903, the petition of compromise was put in before the Subordinate Judge; a certified copy of it is Ex. B at page 143 of the record.

58. The original record of this suit is before us and we find from a reference to the order sheet that when the petition was put into court on the 17th of July, 1903, it was found that the signature of Musammat Rohli Kunwar, who was a defendant in the case, had not been obtained and in order to get her signature if, was ordered that the case was to be brought up again on the 23rd of July. On the 23rd of July the Judge had no time to attend to the case and so it came up on the 24th of July. I have already indicated briefly what took place on that date in presence of the parties and their pleaders. The proceedings of the court are all set out in the rubkar Ex. F. printed at page 151.

59. Without going into unnecessary particulars, the petition of compromise informed the court that it had been arranged that the three sons should divide the zamindari and house properties in accordance with the lists attached to Dharam Das's plaint. Those lists, as I have already said, correspond with the lists prepared by Paras Das in his will.

60. The only variation on the scheme devised by Paras Das was that under this compromise it was agreed that lot No. 1 of the house property should be assigned without drawing to Janeshar Das. The other lots were to be drawn, and they were drawn on the 24th of July, 1903, in the presence of the court. The result was that Dharam Das got lot No. 1 of the zamindari property and lot No. 3 of the house property. Badri Das got lot No. 2 in both properties while Janeshar Das got lot No. 3 of the zamindari property and lot No. 1 of the house property. I have already mentioned that after these lots had been drawn, the Subordinate Judge gave directions for the appointment of a commissioner who was to arrange for the division of the movable and other property, and I have also referred to the fact that ultimately the final partition decree was drawn up on the 16th of December, 1904.

61. It is not and cannot be disputed that the three sons obtained possession of the property of various kinds in accordance with the compromise and decree. I have referred to the fact that orders for mutation were passed thereafter in respect of the zamindari property and I have also mentioned that Musammat Rohli Kunwar, instead of getting a one-fourth share which she was entitled to under the Hindu law, agreed by this compromise to abandon her right to that share in consideration of the arrangements which were being made for her maintenance and residence.

62. I have also referred to the death of Dharam Das and to the fact that his widow is still in possession of some property which was assigned to Dharam Das under this partition. Badri Das, as has been said, died in April, 1920, and his widow is still in possession of the share which was allotted to him; while the plaintiff Janeshar Das has been and is still in possession of the property which he obtained under this decree.

63. This being the state of things in the year 1920 when the present suit was filed, the question which arises is whether the plaintiff Janeshar Das is entitled to go behind the decree and fall back upon the provisions of his father's will in order to succeed on the claim he is now making. It cannot be pretended that he was not a party to the decree. It is clear that he was and that he was represented in the partition suit by a duly appointed guardian ad litem, Lala Jambu Das.

64. It is significant that in his plaint in the present suit he makes no reference whatever to the partition suit nor to the compromise and the decree, both of which he affects to ignore, and the first matter to be discussed is whether he is entitled to take up this attitude. As said already, the learned Subordinate Judge appears to have been of opinion that he is, on grounds, one of which we have shown to be untenable, namely, that the decree was not binding because the permission of the court to the compromise had not been sought and obtained by the guardians ad litem.

65. Let us examine the law relating to compromise decrees in cases where minors are concerned. That law is laid down in Order XXXII, Rule 7, of the Code of Civil Procedure. This rule says that no next friend or guardian for the suit shall, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

66. Sub-rule (2) provides that any such agreement or compromise entered into without the leave of the court shall be voidable against all parties other than the minor. It is apparent from this language that a compromise decree entered into on behalf of a minor, even without the leave of the court first obtained, is not void and a nullity, but is voidable only. It is binding upon all the parties except the minor and the only person who can call it in question is the minor himself. Virupakshappa v. Shidappa (1901) I.L.R. 26 Bom. 109. If the minor does not elect to avoid the decree, it will be binding all round.

67. Now if that is so, what is the position? Clearly it is not open to a minor to treat the decree as void and a nullity as has been done in the present suit, in which, as I have said, the-plaintiff affects to ignore the decree entirely. There is not a word; in the plaint to show that the plaintiff treats the decree-as void or even voidable on any ground of fraud or defect of procedure. The decree is simply not mentioned at all. In my opinion that position cannot be assumed. The decree-being voidable only, must be treated as binding until it has been got rid of, and the period for that having passed, the plaintiff must now be bound by the decree. At the time of his father's death he was between 8 and 9 years of age (see the statement in the will). He must have been born in the year-1894 and must consequently have reached the age of majority in the year 1912. Any suit to avoid the decree ought to have been brought within three years of his reaching the age of majority and a suit for that purpose might therefore have been entertained up to the year 1915. The suit with which we are now dealing was filed in the year 1920.

68. A decree Which is voidable can only be set aside by a regular suit or by bringing an application for review to the court that passed the decree. Neither of these courses was open to the plaintiff at the time the present suit was filed. The only article of the schedule to the Limitation Act which provides a period of limitation for setting aside a decree is Article 95, and that applies to cases where it is sought to set aside a decree obtained by fraud. The period for such a suit is three years. This article could have no application to a suit brought to set aside the decree with which we are now dealing, on the ground that it was voidable. If there is any period for such a suit, it must be the period prescribed by Article 120, and in that case a plaintiff would have six years to bring a suit from the date when the right to sue accrues.

69. As, however, Janeshar Das was a minor, the period of limitation for such a suit brought by him would be that which is prescribed by Sections 6 and 8 of the Act and it is clear from those provisions that in no circumstances could Janeshar Das have brought a suit to avoid this decree after three years had elapsed from the time when he attained the age of majority.

70. It is sought to be argued here that no cause of action for a suit for the avoidance of this decree accrued to Janeshar Das until the date of Badri Das's death which was April, 1920. It is said that it was only on the death of Badri Das that the plaintiff acquired the right to claim, the property which he is now seeking in this suit and that consequently the partition decree could not have in any way affected his right to bring this suit before the date of Badri Das's death.

71. I am unable to accept this argument. It appears to me to be perfectly clear that where a decree is voidable, it is voidable from the very date on which it is passed and consequently limitation for a suit to set aside such a decree upon the ground that it is voidable begins to run from the date of the decree itself.

72. I hold, therefore, that the rights of the parties were finally, settled by the partition decree which was finally passed in the month of December, 1904, and consequently it is not open to the plaintiff in the present suit to go behind the decree and to contend that he is in a position to set up any rights under the will of his father.

73. As regards the scope of the partition decree, that must be collected from the language of the decree itself and there can be no doubt that this decree awarded to each of the sons an absolute estate in the properties allotted to them. And so Badri Das got as full owner the property specified in the two lists, which includes the property which is now being claimed by the plaintiff. Badri Das having died, his widow, the defendant appellant, is entitled to remain in enjoyment of the whole of his estate for her life-time and she cannot be called upon to hand over any portion of Badri Das's estate to the plaintiff Janeshar Das.

74. It has, however, been sought here to limit the scope of the decree by saying that the decree did not and could not deal with what is called 'future rights.' It is said that the right which the plaintiff is now setting up under Clause 13 of the will had not and could not have come into existence at the time the decree was passed.

75. This argument was also advanced in the court below and seems to have been accepted by the learned Subordinate Judge who says in his judgment that the 'reversionary rights' of a minor cannot be dealt with by his guardian. The learned Subordinate Judge further observed that it was abundantly clear that the court which made the partition did not purport in any shape or character to deal with or adjudicate upon the 'reversionary rights' of the infants, and so he was of opinion that the right which the plaintiff is now seeking to enforce was not extinguished by the decree.

76. I find it difficult to understand the observations of the learned Subordinate Judge, nor is it at all clear to me what he meant by the 'reversionary rights' of the minors.

77. In the course of argument here I was led to understand that what was meant by the reversionary right of the plaintiff was the chance of his succeeding to the estate of Badri Das when the latter died. It is, however, to be observed that the right which the plaintiff is putting forward in this case is a right created under the will. He is not claiming to succeed to the property in dispute as an heir of Badri Das. On the contrary, he says that his right to get the property in suit is a right which was created in his favour by the bequest contained in the 13th clause of the will. In other words, the case which he is setting up is that by this clause a gift over of the property in dispute was made to him in the event of Badri Das having died without having made an adoption in accordance with the directions of the testator. In the course of argument the learned Counsel for the respondent referred to Section 6(a) of the Transfer of Property Act for the purpose of showing that the right of his client was incapable of transfer and could, therefore, not be affected by any of the provisions of the partition decree. In other words, the argument seems to be that the plaintiff's right was what is called a mere spes successionis or, to quote the words of Section 6(a), 'the chance of an heir apparent succeeding to an estate.' It is obvious, however, that the right which the plaintiff is now setting up is not a spes successionis or the chance of his succeeding to any estate1 as heir apparent. If the clause in question contains a gift over to a class of which the plaintiff claims to be a member, then it follows that there was created in his favour a contingent interest which, is something very different from the mere spes successionis referred to in Section 6, Clause (a). There is nothing in Section 6 to prohibit the transfer of a contingent interest. The interest created by Clause 13 of the will; if it be-construed as making a gift over in favour of a class, was a contingent interest which might afterwards become vested. It is not correct, therefore, in my opinion to say that the scope of the partition decree can be limited for the reason suggested. The contingent interest had already come into existence on the-death of the testator and it was in existence at the time the parties were before the court in the suit which was brought by Dharam Das to enforce the partition.

78. As I have already said, the partition decree having become final and unimpeachable, it is not open to the plaintiff now to seek to set it aside or to modify it in any way by reliance upon the will of Paras Das. The partition decree is in my judgment res judicata between the parties and the fact that it was based upon a compromise does not alter the situation. It is a clear case of estoppel by judgment and none of the parties to that decree can now go behind it.

79. My decision on this question, therefore, settles the whole case and, in my opinion, the claim of the plaintiff must fail. Under the partition decree which regulates the rights of the parties Badri Das obtained an absolute estate in the properties which were allotted to him, and he having died, his widow is entitled to retain possession of all those properties for the course of her life-time.

80. In view of this finding it is not necessary for me to discuss the other questions which have been raised before us in appeal, but it may be as well for me to express my opinion upon the other matters which have been debated in the course of argument. I proceed to do so shortly.

81. It is argued on behalf of the defendant appellant that whatever other view might be taken of the case, the compromise which was arrived at between the parties to the partition suit operates as a family settlement which cannot now be disturbed. It was pointed out that at the time the compromise was entered into, all the parties who could claim any interest in the estate of Paras Das, namely, his three sons and his widow, were before the court. It is also argued that, will or no will, the parties were entitled to treat the property as being joint property belonging to all of them and to come to any arrangement they chose for the purpose of avoiding future disputes and in order to protect the property from waste.

82. It is further contended that this arrangement having continued for some seventeen years before the present suit was brought, cannot now be disturbed, particularly as the parties or their legal representatives can no longer be remitted to their original position.

83. I have already mentioned the fact that in coming to a division of the property, the two kinds of property, that is to say, the ancestral and the self-acquired property, were divided in varying proportions with the result that out of the zamindari property which fell to the share of Badri Das, some 70 per cent, consisted of the Pardaman Kunwar property which, as I have found, was the separate estate of Lala Paras Das. The other two brothers, on the contrary, obtained in their shares a very large proportion of the ancestral property. I have further adverted to the fact that since the date of the compromise and. the decree Dharam Das has died and a considerable portion of the ancestral property which was allotted to him by the partition decree has been alienated in order to satisfy his debts.

84. As against this it is contended that the case is not one of a family settlement at all. It is argued that there was really no dispute between the parties nor could there be any. Dharam Das, as one of the three sons, had a right to obtain a partition which could not be contested by the other defendants and it is said that there could be no real dispute regarding the amount of the shares. Further, it is argued that it cannot be conceived that the case was one of a dispute regarding doubtful titles, for it is said that the parties ignored the will altogether and there is nothing to show that the terms of the will were ever discussed before the compromise was arrived at.

85. Lastly it is maintained that it cannot be pretended that the compromise was in any way directed towards the preservation of the family estate.

86. It seems to me, as I have said already, that on the circumstantial evidence it must be taken that all the parties to this compromise were fully aware of the contents of the will. It may of course be that they were not in a position to thoroughly understand the purport of all the provisions of the will; but, at any rate, it could hardly have been unknown to them that the will was not a valid document in so far as it purported to dispose of the joint ancestral family property.

87. It may further be observed that it does not seem to be true to say that no dispute had arisen between the parties. There is some evidence that Dharam Das had raised a dispute regarding the division of the family estate. There are allegations in the plaint which he filed in that suit to the effect that he had called upon the other members of the family to come to a. division and that they were seeking to avoid a partition by having the family estate placed under the care of the Court of Wards.

88. It is further to 6e noted that when the plaint in the partition suit was filed, Dharam Das's mother, Musammat Rohli Kunwar, who had not been impleaded as a party in the first instance, came forward in order that she might assert her right to the share which, she was entitled to on division under the Hindu law, namely, a one-fourth share. Her claim, if insisted upon, would have defeated to a certain extent the claim of Dharam Das to a one third share of the property. If her rights were recognized, Dharam Das could not have obtained more than a one-fourth share of the whole property on partition. Again, I cannot accept the argument that the arrangement which was entered into between these parties was not an arrangement for the protection of the family property. The opening words of the petition of compromise (Ex. B, page 143) which was put into court on the 17th of July, 1903, indicate clearly what the object of the compromise was. It is stated there that on the advice of respectable members of the community to which the parties belonged, and having regard to the fact that disputes would bring about the ruination of the family and that the minors would be put to loss by being dragged into court in order to maintain a protracted litigation, it had been decided that a compromise should be entered into in the terms which were set out in the petition.

89. It is not to be doubted that if Dharam Das insisted on a partition, as he had the right to do, and if the partition suit dragged on for a long period, as such suits are apt to do, especially in cases where large family estates are concerned, the parties, and in particular the minors, would have had to incur great expense.

90. In his plaint Dharam Das had offered to agree to a division in accordance with the scheme which had been devised by his father under the will. It cannot be denied that this scheme drawn up by Lala Paras Das was a perfectly just and equitable scheme. It provided for division of the whole estate of the family into three absolutely equal shares, and it would, in my opinion, have been impossible for any court to have made a more proper and just division of the property than that designed by Paras Das in his will. The advantage of entering into a compromise in these terms was that the parties avoided all the anxiety and expense which the division of the estate by a commissioner appointed for that purpose would have entailed. It did away with all risk of contest regarding the division of particular items of the family property and got rid of complications which might have arisen upon allegations that the property was not being divided equally or in a manner convenient to the interests of the parties concerned. In these circumstances I do not see how it can be maintained that this compromise was not designed for the preservation of the property in the sense that it provided an arrangement by which the parties were protected against the expenditure of large sums of money which might have impoverished them. For these reasons, therefore, I hold that the arrangement ought to be regarded in its truest sense as a family settlement which the parties to it are no longer entitled to avoid, more particularly in view of the long time which has elapsed since it was entered into and acted upon and also by reason of the fact that in view of the changed circumstances the parties could not now be remitted to their former position.

91. Another reason which influences me in this connection is this: I have already mentioned that Musammat Rohli Kunwar, the widow of Paras Das, by this arrangement gave up her right to a one-fourth share of the whole of the property and accepted in lieu of that share the arrangements which were made under the compromise for her maintenance and residence. It cannot, therefore, be argued that there was no consideration for the agreement into which the parties entered when the compromise was made. I accept, therefore, the argument that, apart from all other considerations, this compromise should be treated as a family arrangement and should be acted upon as such, and so I hold that in no case ought the plaintiff to be allowed by the present suit to disturb the arrangement in question.

92. Lastly, assuming for the sake of argument that the plaintiff is entitled in this suit to rely upon the provisions of Clause 13 of the will, I proceed to examine the clause in question and to see whether or not the plaintiff has any right under that clause which would, entitle him to recover the property in suit.

93. The clause in question is to be found in page 114 of the printed record but it has not been well translated. The following is an accurate translation of the clause:

With a view to the perpetuation and preservation of my family I also declare by this will that if (God forbid) it should so happen that any one of my sons should have no issue, that is to say, should have no son, he will not have the right of taking in adoption any one out of another family. But he shall have the right to adopt any of the issue of his own (full) brothers whom he may choose and to constitute him owner. In case he fails to do so, the property he may leave (matruka) shall pass to the, survivors (pasmandagan) in the same manner in which property passes in an Undivided Hindu family.

94. The case for the plaintiff on this clause is that Badri Das died without leaving any issue. He also died without having made an adoption in the manner prescribed by the clause. Consequently the plaintiff says that for these reasons he is entitled to claim the property in dispute, which is property left by Badri Das, on the ground that he the plaintiff is one of the survivors (pasmandagan).

95. The case for the defendant regarding this clause was that it was void for several reasons. One reason given was that the clause purported to lay down a rule of succession at variance with the Hindu law of inheritance. And in this connection a reference is made to the direction that the estate (matruka) is to pass to the survivors in the same manner in which property passes in an undivided Hindu family. It is pointed out that the rule of survivorship could no longer apply after the sons had come to a partition and it is argued, therefore, that Paras Das by this clause was giving a direction that property belonging to one member of a divided family should pass exactly in the same way as if the members of the family had remained joint and had never come to a partition. The language of the clause is somewhat obscure and it may well be doubted whether this argument can be maintained. The case for the plaintiff is that the clause contains a gift over to a class of persons described as pasmandagan in the event of any one of the sons dying without issue and without having adopted one of his own brother's sons. It is claimed that the word pasmandagan should not be interpreted in the artificial sense in which it is often used to describe the members of a joint Hindu family who remain after the death of one of the co-parceners. There can be no doubt that the expression is frequently used in this sense and is in a way a technical expression. Ordinarily the plaintiff here would not be entitled to call himself a 'pasmanda' (survivor) after he arid his brothers had arrived at a partition.

96. Treating the clause in the sense contended for by the plaintiff, it is still argued on behalf of the defendant that the condition is void because it was impossible and that consequently, even if the clause be held to apply, the gift over fails and the plaintiff is not entitled to recover.

97. An examination of the language of Clause 13 shows that the first part of the clause deals with adoption. The testator is imposing a restriction upon the light to adopt. He is saying that if any of his sons happens to have no male issue, he must exercise the right of adoption in a particular way. He is not to be allowed to adopt from another family but must make his selection from among the sons of his brothers. Then follows the other clause which must be treated as a defeasance clause. By Clause 4 of the will each of the sons was given an absolute estate in the properties specified in the lists contained in the will, and Clause 13 purports to provide for the termination of this absolute estate and for its passing over to the class described as pasmandagan in case certain conditions are not fulfilled. The words which denote the conditions are as follows: 'ba halat aisa na karne ke' (In case he fails to do so). The question is--in, case he fails to do what? Clearly these words mean, in case he fails to make an adoption from among his brothers' sons. It seems to me that the clause indicates that the failure to act in the manner directed by the testator is to work a defeasance of the estate.

98. The condition, therefore, which had to be fulfilled in order to prevent the termination of the estate on the death of Badri Das was that Badri Das should take in adoption one of the sons of his own brothers.

99. I have already mentioned that Dharam Das died without having had a son and that up to the time the present suit was brought, and certainly up to the time when Badri Das died, the plaintiff Janeshar Das had no son who could be taken in adoption. It is quite clear, therefore, that Badri Das, even if he had been willing to act in obedience to the directions for adoption contained in Clause 13, could not possibly have complied with them. The thing was physically impossible, and so it is argued, and I think argued correctly, on behalf of the defendant appellant that the condition having become impossible was void and that the absolute estate conferred upon Badri Das by Clause 4 of the will could not be divested or pass over to any surviving member of the family.

100. It was suggested in argument that the condition could not be treated as a void condition unless it was impossible at the time of the death of the testator. It was said that if performance of the condition was possible at this time, the fact that it subsequently became impossible would not render the condition void. This, however, does not appear to be a correct statement of the law. The condition the non-fulfilment of which was to lead to a defeat of the absolute estate conferred upon Badri Das by Clause 4 of the will was, in my opinion, a condition subsequent, and I understand the law to be that if performance of a condition subsequent be rendered impossible, the estate to which it is annexed becomes by that event absolute.

101. The following statement of the law is taken from Lord Halsbury's Laws of England, Vol. 28, page 590, paragraph 1163:

A condition may be one which is intended to be performed in a presumed state of facts which do not or cannot exist; according to the intention shown the condition, then either operates conditionally on that state of facts existing, and therefore in the circumstances does not take effect at all, or else operates in any event but it is impossible to perform: If a condition intended to be performed in any event is precedent and is originally impossible to perform or is possible of performance at the date of the will but afterwards becomes impossible by the act of God or circumstances over which neither the donee nor the testator had any control, the performance of the condition is not excused and accordingly the gift does not vest.

Where, however, the condition is subsequent in such a case, the gift takes effect free from the condition.

102. So far as Badri Das was concerned, in order to avoid a defeasance of the absolute estate conferred upon him, it was necessary for him to perform the condition in his life-time, that is to say, the condition of taking in adoption one of his own brother's sons. That, as has been said, was for him an absolute impossibility. The performance of the condition could never have become possible in the life-time of Badri Das unless one or other of his brothers had sons, and it is found that they had not. Here then is a case in which the performance of the condition became impossible, either, it may be said, by the act of God or at any rate by reason of circumstances over which neither the donee (Badri Das) nor the testator Paras Das had any control. The fact that neither Dharam Das nor Janeshar Das had a son in the life-time of Badri Das was a matter altogether beyond the control of Badri Das.

103. I am of opinion, therefore, that in the circumstances the plaintiff cannot be heard to say that he has a-right to claim the property in suit after the death of Badri Das by reason of a gift over contained in Clause 13 of the will. The condition, the non-fulfilment of which was to defeat the absolute estate conferred upon him, was one impossible of performance and consequently it ought to be held that the gift to Badri Das took effect free from the condition in question. In this view, therefore, the plaintiff has no case upon which he can succeed. For the above reasons, therefore, I hold that this appeal must succeed. I would, therefore, allow the appeal set aside the decree of the court below and dismiss the suit of the plaintiff in both courts with costs.

Kanhaiya Lal, J.

104. I agree generally with the conclusions at which my learned brother has arrived, except as regards the effect of the compromise filed in the suit brought by Dharam Das against his brothers in 1903, and the decree for partition passed on its basis, on the rights now claimed by the plaintiff. In order to understand the precise bearing of that issue on the claim of the plaintiff, it is necessary to recapitulate briefly some of the facts and circumstances established by the evidence which lead up to that question.

105. The parties to the suit are Jains. Lala Paras Das was one of the leading members of that community at Saharanpur. He possessed considerable landed and house property, which was the ancestral and joint family property of himself and his three sons, Dharam Das, Badri Das and Janeshar Das. From a collateral branch of the family, to which Lala Paras Das belonged, was descended Pardaman Kunwar, who died in 1895 without leaving any issue. Pardaman Kunwar was succeeded by his mother, Musammat Jawantri Kunwar, who is said to have adopted a boy named Dip Chand. Lala Paras Das and his cousin, Umrao Singh, filed a suit for the recovery of the property of Pardaman Kunwar and obtained on the 10th of October, 1898, by compromise a decree which secured to each of them a one-fourth share in the said property.

106. It is not disputed that, under the Hindu law, the property obtained by collateral inheritance is regarded as the separate property of the person by whom it is inherited. An exception is, however, made where joint family funds are used in the process of its acquisition or where it is voluntarily thrown into the common stock, or is otherwise impressed with the character of joint family property by subsequent treatment. The question for consideration here is whether the property obtained by Lala Paras Das by virtue of the compromise with Dip Chand was blended by him with the ancestral or joint, family property or kept apart as his separate property till his death. The court below found that it was his separate property.

107. It appears that the money required by Lala Para's Das for the expenses of a suit for the recovery of that property was taken by him from the joint family funds, and subsequently repaid out of the profits of that property after he had succeeded in obtaining a decree by a compromise with Dip Chand. The account books of the joint family firm of Paras Das Bahadur Singh, which contained an account of the family property and business, were divided after the death of Lala Paras Das between his three sons, each of whom got a separate set of books, which, though indifferent in form, were complete by themselves (vide Ex. B). Neither party has produced those account books in this case. They were summoned from the defendant and from Musammat Bachcho Kunwar, the widow of Dharam Das, by the plaintiff, but both of them stated that they were unable to trace them. The plaintiff did not produce his own set of books nor came into the witness box to explain why he could not produce the books given to him at the time of partition.

108. Some of the account books had, however, been produced in the suit filed by Musammat Bachcho Kunwar against Dharam Das. They had been examined by the Subordinate Judge who, heard the suit, and by the High Court on appeal. From a summary of the result of that examination, so far as it affects the matter now in issue, as noted by the High Court, it appears that Rs. 9,654 had been spent by Lala Paras Das in that suit up to Savan Sudi 9th, Sambat 1956, the whole of which was debited to the personal khata of Lala Paras Das in the family account books, and that the same was subsequently discharged out of the profits or income derived from the Par daman Kunwar property, leaving at the end of the year a balance of Rs. 8,987-12-10 standing, after the said payment, to the credit of Lala Paras Das in his personal account (Ex. 5). Acting on those entries, this Court found that the joint estate suffered no appreciable detriment by the transaction, and that it would be unduly extending the principle of Hindu law applicable to acquisitions by the aid of joint funds or joint exertions, to hold that the property, which came to Paras Das by inheritance from a collateral branch of the family, had thereby become joint family property.

109. Hardwari Lal, an agent of Janeshar Das, states that he had an opportunity of examining those account books on behalf of Dharam Das during the hearing of that suit at the instance of Babu Oudh Bihari Lab, who appeared for Dharam Das in that case, and that Babu Oudh Bihari Lal had got the books given to him for the purpose. His recollection of the result of that examination, as now given by him in round figures and without dates, tallies with the result of the examination of those books which was noted by the High Court in its judgment. It has been pointed out that the account books had been produced in court in that suit on the 11th of February, 1904 during the course of the hearing which had lasted many days, and that the witness ought not to be believed because no application for the inspection of the record of that or of a subsequent date was traceable on the record. But during the progress of the hearing of a suit, a counsel has the privilege of examining such documentary evidence as he may have summoned from a witness or a party, before tendering it in evidence, and there is nothing improbable in his having obtained the account books from the court or from the persons producing them on the date of hearing without any formal application for inspection, and. got them examined for his assistance by a person who knew the character in which they were written. In the absence of the original account books, a summary of the result of that examination, as given by Hardwari Lal and corroborated by the judgment of the High Court, is admissible in evidence, under Section 65 of the Indian Evidence Act, and affords proof of considerable value of the fact that whatever money was taken by Lala Paras Das for the expenses of the suit against Dip Chand was repaid by him out of the profits of the property decreed in that suit, and that there was no appreciable detriment to the family funds in the process of its acquisition. As an instance of a transaction in which the nature of the right held by Lala Paras Das in the Pardaman Kunwar property was determined, the judgment of the High Court, above referred to, cannot be wholly disregarded. The property acquired was of considerable value. In the suit filed by Lala Paras Das and Umrao Singh, the value of the property claimed was assessed at over rupees six lakhs and a half, and out of it a separated half share was decreed in favour of the then plaintiffs. The expenses incurred in the litigation were not in fact heavy as the suit was compromised soon after its institution. They bore a very insignificant proportion to the aggregate value of the property recovered, and such expenses as were incurred were actually repaid out of the profits soon afterwards.

110. It appears, moreover, from the evidence of Atma Ram that the income of the Pardaman Kunwar property used to be credited in the separate khata of Lala Paras Das in the family account books. The staff employed in the collection of rents of the family property and of the property inherited from Pardaman Kunwar was the same, because many of the villages or properties were common. It is significant, at all events, that no portion of the joint family expenses was incurred out of the income of the Pardaman Kunwar property or from the income entered in the separate khata of Lala Paras Das. The entire income from the property was also entered, according to Atma Ram, in a separate set of account books relating to that property, maintained by Lala Paras Das. Despite the compromise, Lala Para's Das seems to have apprehended that Dip Chand might, on attaining majority, seek to avoid the compromise. He, therefore, took care to' keep the income of the Pardaman Kunwar property apart and did not allow it to. he blended with the family income.

111. On the 16th of November, 1902, Lala Paras Das executed a will, in which he stated that he held two kinds of property, namely (1) the ancestral property and such other property as had been acquired with the aid of ancestral funds and (2) the property which he had received by right of inheritance from Pardaman Kunwar. He significantly excluded the latter property from the category of property acquired with the aid of ancestral funds. Pie proceeded to declare that after his death his three sons shall be the owners and possessors of all the immovable and movable properties in equal shares, and directed that, if they chose to separate after his death, each of his sons should arrange to take one of the three lots of landed and house properties prepared by him and appended to the will without any addition or alteration, either by mutual agreement or by drawing lots before a court of justice or in the presence of arbitrators appointed for the purpose. In the scheme of partition so prepared and appended to the will for future adoption, he took care to blend the ancestral and separate properties, thinking probably that by so doing his eldest son, Dharam Das, whom he had begun to distrust on account of his vicious habits and improper ways, would have no greater power of disposal over the portion of the Pardaman Kunwar property falling to his lot than he would have over the ancestral portion. Every fond father hopes that his sons would have male issue. By the method he adopted, be kept his own hands free but sought to provide a curb for his sons, if they happened to have any male issue.

112. The blending was with that end made to take effect on a partition taking place after his death. The terms in which he spoke of Dharam Das preclude the idea that lie had thrown the property into the common stock in his life-time. In his subsequent codicil of the 17th of April, 1903, he referred again to the vicious habits and immoral ways of Dharam Das, and laid stress on the two classes of properties of which he was in possession, namely (a) the ancestral property or that acquired with the ancestral funds, which he could not transfer to any body, and (b) the property inherited under a decree from Pardaman Kunwar, which he said was his own property and which he was competent to bequeath to any one he liked (Ex. 11). Pie then proceeded to set apart a portion of the latter property yielding an annual income of rupees twelve hundred for the maintenance of Musammat Bachcho Kunwar, the wife of Dharam Das, and directed that if Dharam Das offered any obstruction to the mutation of names in her favour or to her possession or occupation, he shall be totally deprived of the entire property which might be allotted to him out of the estate of Pardaman Kunwar, and the said property shall in that case devolve upon Musammat Bachcho Kunwar for her life without any power of transfer. He was throughout anxious to maintain the -separate character of the estate inherited by him from Pardaman Kunwar and keep its income separate in his personal khata and account, and he asserted and reiterated from time to time his full power of disposal over the same as long as he lived. The finding of the court below on that point cannot, therefore, be assailed.

113. Lala Paras Das died on the 2nd of May, 1903, leaving his widow, Musammat Rohli Kunwar, and his three sons, Dharam Das, Badri Das and Janeshar Das, surviving him. On the 15th of June, 1903, Dharam Das sued for a partition of his one-third share, without making any reference to the wills and codicil which had already been opened on the application of Girdhari Lal, the nominated guardian of the other sons. But he appended to his plaint a copy of the three lots of landed and house properties given in the will, and asked that a partition might be effected in accordance with those lots by each of the brothers drawing one of them, or by an independent division, if the other brothers so desired.

114. It cannot be said that Dharam Das was unaware of the terms of the will or of the dispositions it contained, when the above plaint was filed. In fact he referred in paragraph 3 of the plaint in a vague and veiled manner to what he described as the many plans hostile to the plaintiff which had been devised by his father but which, he said, were not binding on him so far as they were prejudicial to his interest. Badri Das and Janeshar Das were then minors and both were represented in the suit by their mother, Musammat Rohli Kunwar, as their guardian.

115. On the 17th of July, 1903, Musammat Rohli Kunwar applied to be impleaded as a co-defendant, and claimed to be entitled to a one-fourth share in the property of her husband. On the same day she was added as a defendant, and her name was removed from the guardianship of her minor sons and that of Girdhari Lal substituted as the guardian ad litem of Badri Das, and that of Jambu Das as the guardian ad litem of Janeshar Das.

116. The plaintiff and the guardians ad litem of Badri Das and Janeshar Das, and Musammat Rohli Kunwar then filed a petition of compromise, settling all their disputes and accepting the lots of landed and house properties prepared by Lala Paras Das and appended to his will for future allotment, and also setting apart certain properties, yielding a rent of rupees twelve hundred per year, for the maintenance of Musammat Rohli Kunwar. They asked the court to assign the lots to each of the three brothers by allowing the then plaintiff, Dharam Das, and the guardians ad litem of Badri Das and Janeshar Das to draw the same; but what is significant is that in the petition of compromise they made a provision for almost every important matter covered by the will and adopted the directions contained in the same with certain variations which have no bearing on the present issues. This would not have been possible, had the will of Lala Paras Das not been present to the minds of the parties to the compromise, when it was drafted and filed.

117. Both Girdhari Lal and Jambu Das, acting on behalf of Badri Das and Janeshar Das respectively, applied for permission to enter into the compromise on behalf of the minor defendants, stating that the compromise was for their benefit. The court granted the requisite sanction, and as a result of the drawing of the lots, Dharam Das was given lot No. 1 of the landed properties and lot No. 3 of house properties, Badri Das was given lots No. 2 of both the landed and the house properties, and Janeshar Das was given the remaining lots. A decree was passed in accordance with that compromise on the 24th of July, 1903, and it was made absolute after certain outstandings and movables were further divided, on the 17th of December, 1904.

118. The result of the division, so effected, was that though the lots were equal in their aggregate value, the ancestral property and the Pardaman Kunwar property were blended and allotted to the three parties in unequal and varying proportions, as suggested by Lala Paras Das in his will. Out of the ancestral property, Dharam Das got landed property yielding an income of Rs. 4,579-5-6 per year; Badri Das got landed property yielding an income of Rs. 1,843-13-3 per year; and Janeshar Das got landed property yielding an income of Rs. 4,686-4-9 per year. Out of the Pardaman Kunwar property, Dharam Das got landed property yielding an income of Rs. 875-10-6 per year; Badri Das got landed property yielding an income of Rs. 3,669-1-9 per year; and Janeshar Das got landed property yielding an income of Rs. 676-6-3 per year. The division of the house property, both ancestral and inherited from Pardaman Kunwar, was similarly unequal.

119. But for the compromise, Musammat Rohli Kunwar would have been allowed a one-fourth share, and Dharam Das and his minor brothers would have got one-fourth each. The division may not, in that case, have been made in the form suggested by Lala Paras Das in his will and accepted and adopted by his heirs. Among the items of property given to Musammat Rohli Kunwar by the compromise for her maintenance, there were two shops situated on the back of the house of the Rana of Jasmur in Saharanpur, which formed a part of the Pardaman Kunwar Estate (Vide item No. 18 of Lot I of the residential property in Ex. VI).

120. As the will of Lala Paras Das was invalid under the Hindu law in regard to the ancestral property and valid in regard to the separate property inherited by him from Pardaman Kunwar, and his three sons were declared by the will to be the owners of the same after his death in equal shares, the minors, Badri Das and Janeshar Das, were as much benefited by the compromise and settlement of their disputes as the then plaintiff, Dharam Das. The parties accepted the recommendation of Lala Paras Das as to the manner in which the properties should be divided after his death whenever a partition was desired by any of his sons, and though the effect of the adoption of the scheme of partition appended to the will was to blend the two kinds of properties referred to in the will and to divide the same in. three equal shares with varying ingredients from each block or kind, it is not now open any longer to the parties to go behind that compromise and the decree passed on its basis, so far as they settled the rights and interests then in question.

121. It is presumable from the facts above narrated that the court had done all that was necessary to consider how far the compromise operated to the benefit of the minors, when it granted its sanction; and, though Girdhari Lal does not say that Clause (13) of the will of Lala Paras Das regulating the future devolution of the estate was specifically considered or discussed or taken into account when the compromise was entered into, it is not, open to Janeshar Das to repudiate the compromise so far as it affected the rights he then possessed, on any ground whatever.

122. As observed by their Lordships of the Privy Council in Rani Nctoa Kuwar v. Rani Hulas Kuwar (1874) L.R. 1 I.A. 157, a compromise is in a sense a recognition or acknowledgment of some antecedent right, but where an exchange or transfer is effected by a compromise between different persons in respect of different kinds of properties to be held in varying proportions, a minor, ?who feels aggrieved by such an exchange or transfer effected under the guise of a compromise, can repudiate the transaction within three years of his attaining majority or within the period ordinarily allowed by law for a suit for that purpose, whichever is longer. A compromise effected by a guardian ad litem in contravention of the terms of Section 462 of the old Code of Civil Procedure is only voidable at the instance of the minor. It is not void. If the minor on attaining majority does not repudiate it or seek to avoid it in the manner and within the time allowed by law, it binds him to the same extent and in the same way as if it had been validly effected by a person who had been of full age. On attaining majority in 1911 or later in 1914, when the certificated guardian was removed, the plaintiff was bound to exercise his option of repudiating it or affirming it. He took no steps to repudiate it within the time allowed by law. On the other hand, he ratified it by remaining in possession and enjoyment of the profits of the properties assigned to him by the compromise and has been so in possession and enjoyment up to this date. Since attaining majority, he has enjoyed the profits of the property for a period of nearly 10 years. Both, as a compromise and as a family settlement of the disputes then pending between Dharam Das and his brothers and their mother Musammat Rohli Kunwar and of their claims in regard to the family property, as affected by the will of Lala Paras Das of the 16th of November, 1902, and his codicil of the 12th of March, 1903, the compromise and the decree passed on its basis, so far as they go, cannot now be impeached.

123. It is necessary, however, to consider how far that compromise and decree could estop the parties from claiming any rights, which had not till then arisen, or which, owing to all the brothers being then alive, none of them could, have positively or with any reasonable certainty claimed as his own. Dharam Das died without leaving any issue in 1907 or 1908. He left a widow, Musammat Bachcho Kunwar, who got such property as Dharam Das had left unsquandered in addition to what she had already recovered by a decree against her husband, based on the codicil of Lala Paras Das of the 17th of April, 1903. Badri Das died without leaving any male issue on the 26th of April, 1920. He left a widow, Musammat Phulwanti Kunwar, who is the present defendant appellant. She obtained possession of the property left by her husband, and obtained mutation of names in respect thereof in her favour. The present suit is confined to that portion of the property in her possession which had been allotted to the share of Badri Das out of the Pardaman Kunwar estate.

124. That estate, as has already been pointed out, was the separate or self-acquired property of. Lala Paras Das and was devided by him to his three sons along with the. ancestral or joint family property in three equal shares (vide paragraph 4 of the will of the 16th of November, 1902). By the compromise of the 17th of July, 1903, the two kinds of properties were blended in accordance with the lots recommended by Lala Paras Das and dealt with as if they had been the joint family property of the three brothers without any distinction; and Badri Das was assigned lot No. 2 of the landed and house properties, which included a smaller portion of the ancestral property and a larger portion of the Pardaman Kunwar properly, while Janeshar Das was given a larger portion of the ancestral property and a smaller portion, of the Pardaman Kunwar estate.

125. The contention of Janeshar Das is that by reason, of Clause 13 of the will of Lala Paras Das of the 16th of November, 1902, lie became entitled on the death of Badri Das to the portion of the Pardaman Kunwar property allotted to Badri Das at the time of partition, because Badri Das had died without leaving any issue. Clause 13 of the will was to the following effect:

With a view to the perpetuation and preservation of my family, I do further make a will to the effect that if, through (ill) luck, God forbid, any of my sons should remain childless (lawald) that is, should have no son, he would, not have the power to adopt out of another family. But he would have the power to adopt any one he pleases from among the sons (aulad) of his own brothel's and make him the owner of his estate {matruka). In case he does not do so, his estate (matruka), shall devolve on the survivors (pasmandagan), as in a joint Hindu family.

126. If the testator gave an absolute estate to each of his sons, he had no power to restrict the right of any of his sons, happening to be childless, to adopt a son from any family or line allowed by custom or law. But he could make the grant of the estate to his sons defeasible if they or any of them disregarded the directions given by him in his will, and direct the transfer of the object of his bounty on the happening of that contingency to any other person living at his death, and at the time the contingency happens. He could not lay down a scheme of inheritance; but he could, subject to the provisions of the Hindu law before its modification by Act XV of 1916, point to the surviving members of his family, who could take the estate, if a certain contingency happened. This is substantially what he did. He told each of his sons that he should not, if childless, adopt any person from outside the family to the exclusion of a son of any of his brothers, and that if he did so, the estate of the person so adopting an outsider would be diverted from such adopted son or his successor to the other survivors of the family. He contemplated the possibility of his sons separating and making a partition after his death, and had prepared a scheme of partition which if adopted, as it eventually was, was to operate as if the whole estate, including the Pardaman Kunwar property, had been their joint family property. He was deeply opposed to the property, going under the pretext of adoption to a person outside the family and he consequently declared that, if an adoption was made by any of his sons from among the members of another family and not from among the sons of his brothers, such adopted son would not be entitled to his estate, and the property would be diverted 10 the surviving members of the family as if the family had continued to be joint.

127. A remote and uncertain contingency, resting on assumptions, none of which, may eventually turn out to be true, cannot stop the partition of a family estate, if it is otherwise divisible. The compromise and the decree for partition naturally made no reference to Clause 13, because all the three brothers were then alive and the specific donee entitled on defeasance could not have been ascertained till the contingency referred to in that clause had arisen. Two of the brothers were of very tender years, and it could not be said which of them would have no issue. In fact, it could not then have been foreseen which of the three brothers would survive whom, and no rights had till then arisen in favour of Janeshar Das to which section; 6 of the Transfer of Property Act could have applied, or which the compromise or the decree for partition could have prejudiced.

129. The word pasmandagan (survivors) is somewhat ambiguous and may mean either the surviving sons or the surviving members of the family, including any grandsons or other-children alive at the death of the testator and on the happening of the said, contingency. The contingency did not, however, arise, for Badri Das made no adoption and no nephew was available. Dharam Das had no child born to him. Badri Das had a son, who had died in his life-time. Badri Das left a daughter alive but no male issue. Janeshar Das, the plaintiff respondent, has yet no children.

130. There was thus no male child available in the family whom Badri Das could have adopted. Indeed, he chose not to contravene the direction given by his father and made no adoption. If Janeshar Das has any male children hereafter born to him, the widow of Badri Das may take any of them in adoption to her husband. Till a son is born to Janeshar Das and is available for adoption, the enforcement of the penal condition, if it is a penal condition limiting the field of choice, is wholly impossible. A right to adopt is optional, but a testator can make a grant restricting that right. The failure of a person to make an adoption cannot be punished, though a disregard of the instructions given may involve a forfeiture of his rights.

131. No forfeiture of the rights of Badri Das during his life was here intended, for the defeasance was only to take place after his death if he Ignored the restriction. The restriction in this case was never ignored, for no adoption was made; and the claim of the plaintiff must, therefore, fail. The words 'ba halal aisa na karne ke' (in case he does not do so) imply the doing of an act in contravention of the restriction and do not suggest that the mere dying of a man without leaving any male issue would attract that penalty. A defeasance clause must be strictly construed if its effect is to divest a person in whom an estate has already vested, and a penalty, which applies to one state of circumstances, cannot be enforced in another state of facts. The contingency contemplated, namely the adoption of an outsider to the exclusion of the son of a brother, has not yet arisen, and no cause of action has, therefore, accrued to the plaintiff.

132. The claim must, therefore, fail, and I agree in allowing the appeal and dismissing the suit with costs here and hitherto.

133. The order of the Court is that the appeal be allowed, the decree of the court below be reversed and that the plaintiff's suit be dismissed with costs in both courts.


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