1. This appeal raises a very difficult question of law and I have arrived at my decision with some hesitation.
2. The facts are as follows:
One Salig Ram did in 1905, leaving him surviving two daughters only, Musammats Krishna Kuar and Ilaichi Kuar. It is stated that he had separated in 1891 from Raghunath and Bal Gobind, his first cousins, who were brothers and that Raghunath separated from Bal Gobind in 1895. On the death of Salig Ram in 1905 disputes arose as to the succession of his property. What exactly those disputes were is not established by any evidence on the record but this much is certain that on the 22nd of September 1905, about a mouth after the death of Salig Ram, an agreement in writing was entered into between Bal Gobind, Raghunath and the two daughters of Salig Ram as to the division of the property left by Salig Rain. That document was executed by all four and is in the following terms:
The aforesaid property left by Salig Ram has devolved upon us, the executants, in equal shares by right of inheritance. Besides us there is no other claimant of the property of the said deceased. Now, we all the four parties have, with our mutual consent, divided the property left by the said deceased in equal shares.... All the four parties shall remain in separate possession and shall be the exclusive owners thereof. Each party may hate his own share separately partitioned and one party will have no objection as against the other.
3. This agreement was given effect to and mutation of names was made accordingly, that is to say, Musammat Ilaichi Kuar, Musammat Krishna Kuar, Raghunath and Bal Gobind each took possession of a separate one-fourth share and dealt with it as their own exclusive property. Thus we find that Raghunath Prasad sold his share and he is no party to this litigation, nor are his transferees; and on the death of Bal Gobind in 1906 his three sons, Sri Ram, Babu Bahadur Singh and Ram Charan, defendants Nos. 1-3 obtained mutation of names in respect of the fourth share which Bal Gobind had acquired under the agreement and have been in possession of it ever since. This position of affairs lasted until the 7th of February 1920 when Musammat Krishna Kuar died without issue. Thereupon a dispute arose in the mutation department between the plaintiff Lala Ram Bahadur, the husband of Musammat Krishna Kuar deceased, her sister Ilaichi Kuar and the three sons of Bal Gobind, namely, Sri Ram, Babu Bahadur Singh and Ram Charan for the entry of their names respectively in the place of that of Musammat Krishna Kuar with respect to her 1-4th share. The Revenue Court directed the entry of each set of claimants over 1-3rd of the property left by Musammat Krishna Kuar, that is to say, it decided that Ram Bahadur was entitled to 1-3rd, Musammat Ilaichi Kuar to 1-3rd and. the three sons of Bal Gobind to 1-3rd. This suit was brought by Lala Ram Bahadur to recover 2-3rd share which was entered in the name of Musammat Ilaichi Kuar and defendants Nos. 1-3. He based his claim on the allegation that under the compromise of the 22nd of September 1905 his wife became absolute owner of 1/2th of the property left by her father Salig Ram and that it became her stridhan and on her death without issue he succeeded to it; he was the next heir and as such entitled to the property. Musammat Ilaichi Kuar did not contest the suit but defendants Nos. 1-3 raised several defences. Their written statement is not very easy to understand They say:
(1) Under the deed of partition dated the 22nd September 1905 the property acquired by Musammats Krishna Kuar and Ilaichi Kuar as daughters of Salig Ram cannot constitute their stridhan, nor is the same their self-acquired property. Under the Hindu Law they were the owners of the entire property left by Salig Ram. They took a little less than their share under the Hindu Law and gave something to the brothers of their father.
(2) Musammat Krishna Kuar died without leaving any issue. According to the Hindu Law her property devolved upon her sister Musammat Ilaichi Kuar. The plaintiff is not the heir to the property in dispute under the Hindu Law. His claim should be dismissed.
(4) No Hindu is competent to establish succession contrary to the provisions contained in the Hindu Law and Legislative enactments, and, according to the document dated the 22nd September 1905 plaintiff's succession under Hindu Law has not been established.
(5) The document, dated the 22nd September 1905, is based upon a clear misconception of the principles of the Hindu Law. In reality there was no dispute. Neither Bal Gobind nor Raghunath Prasad had any right at that time. The plaintiff has misinterpreted the aforesaid document. It has no effect against the succession under the Hindu Law.
4. The Trial Court dismissed the suit. On appeal, however, the lower Appellate Court decreed it, holding that the compromise of the 22nd of September 1905 was a settlement of a family dispute and as such was binding upon the parties. Babu Bahadur Singh alone has appealed, and two main grounds have been strenuously urged on his behalf. Firstly, that the agreement of the 22nd of September 1905 cannot be regarded as a settlement of a family dispute such as has been upheld on many occasions by the Privy Council, and, secondly, that the defendants, being no parties to the compromise, are entitled to set up their claim as reversioners and that they do not claim as such through their, father Bal Gobind but independently.
5. On the first point, having regard to the evidence on the record it may be that this agreement was not a settlement of a family-dispute recognised as such by the Privy Council. It is manifest on the face of it, that the settlement arrived at in 1905 and given effect to was one wholly unjustified by Hindu Law. If Salig Ram was separate from his cousins then his two daughters were undoubtedly his heirs and were entitled to succeed to his property. If Salig Ram was joint with his two cousins then they would be entitled to succeed by survivorship and his daughters would be entitled to maintenance only. The position would be further complicated1 if Raghunath and Bal Gobind were separate from each other, but whatever was the actual state of facts the two daughters and Raghunath and Bal Gobind could not possibly be entitled to proprietary rights in a one-fourth share. However in the view I take it is unnecessary to decide this question and I rely for the view I have taken on two recenc decisions of the Privy Council which are reported in Kunhai Lal v. Brij Lal 47 Ind. Cas. 207 : 40 A. 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 451 A. 118 (P.C) and Hardei v. Bhagwan Singh 50 Ind. Cas. 8l2 : 84 C.W.N. 105 (P.C.).
6. It seems to me that, although defendants Nos. 1-3 (including the appellant) were no parties to the partition of 1905, nevertheless since 1906 on the death of Bal Gobind, their father, who was a party to it, they have been in possession of the share which Bal Gobind acquired under that partition and to which he would not have been otherwise entitled. Ever since, that is for over 14 years, they have taken the place of their father and have enjoyed possession of the property in succession to him, and I, therefore, hold that they are now estopped. It must be noted that as Ilaichi Kuar is still alive, even according to their own written statement, they have no present valid claim under Hindu Law to the one-fourth share of Salig Ram's property and if Raghunath, who is also alive, was also separate from Gobind, may never have a legal claim. In Kunhai Lal v. Brij Lal 47 Ind. Cas. 207 : 40 A. 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 451 A. 118 (P.C) a similar argument was raised, but it was held that as under the compromise Kanhai Lal had obtained a substantial benefit which he had hitherto enjoyed he was bound by it and could not now claim as a reversioner though he was no party to the compromise in that case. Similarly, in the case of Hardei v. Bhagwan Singh 50 Ind. Cas. 8l2 : 84 C.W.N. 105 (P.C.) their Lordships of the Privy Council held 'whether this arrangement is binding on the grandsons cannot be determined in this suit, and on that question their lordships express no opinion. But the plaintiff at all events is bound by her own agreement, and in view of this fact, and of the favour shown by the Courts to family arrangements and the long period of time which has elapsed since the arrangement was made, she cannot now be allowed to repudiate the agreement.' It is quite clear that one of the grounds, if not the main ground, for their decision was that the plaintiff being a party to the agreement could not be allowed to repudiate it. Here, although the defendants were no parties to the agreement, their father was, and on his death they adopted it and obtained possession of the property which had come to their father under the agreement and were in possession of it for over 14 years and even now they do not repudiate it. They wish not only to hold what they got under that agreement but at the same time to go behind that agreement and claim as reversioners (vide their written statement). In my opinion they are estopped from so doing. I would dismiss the appeal with costs.
Gokul Prasad, J.
7. I agree.