1. This appeal arises out of a suit brought to recover possession of certain zemindari property. The property originally belonged to one Chandan Singh, who died on the 22nd of February 1866. He left him surviving a widow, named, Musammat Jasodha Kunwar, and throe sons of a daughter, named, Gulab Kunwar. There was also a lady named Mohun Kunwar. Plaintiffs Nos. 1 and 2 are her sons. The third plaintiff is a transferee from these sons, evidently a person who has taken a transfer and is financing the litigation. Mohun Kunwar, it is alleged by the plaintiffs, was also a daughter of Chandan Singh but this is challenged by the appellants who say she was illegitimate. Gulab Kunwar pre-deceased Jasodha Kunwar, and Jasodha remained in possession of the property as the widow of Chandan Singh up to her death which took place on the 16th of February 1872. After the death of Jasodha, the property apparently was taken possession of by the collateral heirs of Chandan Singh. A suit was instituted by Jawahir and others, the sons of Gulab Kunwar, to recover possession of the property, and after some litigation a decree for possession was obtained. Mohun Kunwar, who, of course, would have been entitled to the property in priority to the sons of Gulab Kunwar, assuming her to be the legitimate daughter of Chandan Singh, apparently lay by and took no part in the litigation. She apparently was not recognised by the sons, nor did she put forward any claim on her own behalf. After the property had been recovered, however, some claim must have been put forward by or on behalf of Musam. mat Mohun Kunwar, because in the year 1876 we find that a submission to arbitration was entered into between Musammat Mohun Kunwar on the one part and the sons of Gulab Kunwar on the other. This submission to arbitration recited that there were disputes between Musammat Mohun Kunwar and the sons of Gulab Kunwar in regard to the property of Chandan Singh in respect of which a decree had lately been obtained and (he parties submitted their differences to arbitration with a view to have their disputes settled. The nature of the dispute does not appear, and we think that if there was any question as to the legitimacy of Musammat Mohun Kunwar, it is probable the matter would be set forth vaguely as a dispute and would not be directly referred to. An award was made giving to Musammat Mohun Kunwar four villages, in value about one-seventh of the property. The rest of the property was given to the sons of Gulab Kunwar and one Bal Makund, who had been a co-plaintiff with them in their successful suit to recover possession of the property. This award was made a rule of Court. Ever since, until this suit was instituted, possession has gone in accordance with this award. It cannot be urged we think that Musammat Mohun Kunwar was tricked or induced to sign the submission to arbitration and an award knowing nothing about it. She was probably a par-danashin lady and illiterate, but we find that her husband was her general attorney and he singed her name on the award as such. A son of Mohun Kunwar, who was evidently of full age, identified her at the registration of the power-of-attorney to the father. As a matter of fact, Musammat Mohun Kunwar lived until the 17th of October 1908. The award has been acted upon ever since. On the death of Musammat Jasodha and after the property had been recovered by the sons of Gulab, if there had been no question as to the title of Musammat Mohun Kunwar, she would have been entitled to immediate possession of the entire property during her life, and on her death, her sons, as the daughter's sons of Chandan Singh, would also have been entitled to share in the estate with their cousins. Therefore, not only was it the interest of Mohun Kunwar that she should get the property if she was entitled to it in the year 1876 but it was also the interest of her husband and her sons. She, no doubt, would be the legal owner but for all practical purposes, they would share at least equally with her the benefit and profits of the estate. From the year 1876 up to the time of the institution of the present suit, the award has never been challenged, either by Musammat Mohun Kunwar herself or by any one of her four sons. There are two sets of defendants to the present suit: First, the transferees from the sons of Gulab Kunwar of the property which they acquired under the award, and secondly, transferee from Mohan Kunwar herself of the property which was allotted to her. The Court below has decreed the plaintiffs' claim in respect of all the property which was alienated by the sons of Gulab Kunwar. It also has decreed the claim for such of the property as was alienated by Musammat Mohun Kunwar in the alienation of which her sons did not join or in respect of which legal necessity for alienation was not proved.
2. The defendants have appealed against the decrees for possession in this and some of the connected appeals. The plaintiff has also preferred an appeal in respect of so much of the claim as was dismissed.
3. In our opinion, the whole case depends upon whether the submission to arbitration and the award can he regarded as a family settlement which ought to be given effect to. It is, of course, impossible now for the transferees of the sons of Gulab Kunwar to prove that Mohun Kunwar was illegitimate. They are strangers to the family and it is no longer the interest of the family to help them. In our opinion, the transaction was a family arranagement and ought to be regarded as such. We have already mentioned the circumstances under which the submission to arbitration was entered into. We have pointed out that it has been acted upon for very many years and we think that it would be very wrong to disturb the possession of those persons who have acquired the property on the strength of the submission and award. There cannot be the least doubt that the award was acted upon and that Musammat Mohun Kunwar and her sons took possession of the property that was allotted to her while the sons of Gulab Kunwar were allowed to take possession and deal with the property which was allotted to them.
4. It is contended on behalf of the plaintiffs that this plea of family arrangements not open to the defendants and reliance is placed upon paragraph 9 of the written statement. In the written statement of those defendants who claimed through the sons of Gulab Kunwar, it is alleged that Musammat Mohun Kunwar was illegitimate. Paragraph 9 goes on to say that the arbitration and award were fictitious and colourable. It is contended by the plaintiffs that, so far from relying upon the award as a family settlement, this set of defendants at least were alleging the whole transaction to be fictitious. In our opinion, there is no substance in this contention. It never was or could be the case of any of the defendants that the submission to arbitration and award were fictitious in the sense that they were never acted upon. It was the common case of both sides that the award was acted upon for very many years, and there is not the least doubt that numerous transfers of the property have taken place on the strength of it, some of the transfers being made by Mohun Kunwar and her sons and some by the sons of Gulab Kunwar. The real meaning, we think, of paragraph 9 of the written statement was that the award was really a colourable method adopted by the parties of giving Musammat Mohun Kunwar a small share in the property in consideration of her relinquishing all claim to the remainder. They also referred to Section 115 of the Evidence Act as being a bar to the plaintiffs' claim, that is to say, they raised a plea of estoppel. This, we think, shows that the real meaning of paragraph 9 was the meaning we have attributed to it. As a matter of fact, the set of defendants, who represented the transferees from Musammat Mohun Kunwar herself and her sons, did rely on the submission to arbitration and award as a family settlement and the Court framed an issue on the point. It is true that this set of defendants raised the plea for another purpose, namely, as being a ground for their claiming the property as being the absolute property of Musammat Mohun Kunwar and not property to which she was merely entitled for a daughter's estate. We do not think that it can be urged that any one is now being taken by surprise or that the full facts are not before the Court. Having regard to the circumstances of the present case and the fact that the submission to arbitration, the award and subsequent alienations were never challenged up to the institution of the present suit, we are entitled to assume that in the year 1876 there was a genuine and real dispute between the parties, whether that dispute had reference to the legitimacy of Musammat Mohun Kunwar or to some other matter. The submission to arbitration referred these matters to the settlement of arbitrators and an award was made by consent of parties and that award was made a rule of Court. We think that this can clearly be regarded as a family settlement and that it fulfils the test approved of and laid down by their Lordships of the Privy Council in Khunni Lal v. Gobini Krishna Narain 33 A. 356 at p. 387 : 10 Ind. Cas. 477 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom.L.R. 427 : 10 M.L.T. 25 : (1911) 2 M.W.N. 432 : 21 M.L.J. 645. In the present case, just as in the case referred to by their Lordships of the Privy Council, the true character of the whole transaction was a settlement between several persons of their disputes, whatever those disputes may have been. This being so, the transaction was binding not only upon the actual parties to it but the family.
5. We accordingly allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' claim as against Madan Lal, the appellant in this case, with costs in both Courts including in this Court fees on the higher scale.