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Nirman Bahadur Vs. Fateh Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1992All963; 118Ind.Cas.710
AppellantNirman Bahadur
RespondentFateh Bahadur Singh and ors.
Cases ReferredKandasami v. Doraisami Ayyar
- u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - the principle is now well recognized that the widow, although a limited owner, represents the entire estate of the last male holder and any decision obtained against her either on a fair trial on contest, or on a bona fide compromise which amounts to a family arrangement would be binding on the estate represented by the widow. 12. it was.....mukerji, j.1. this is the plaintiff's appeal. the following pedigree will explain the history of the case and the relationship among themselves, of the actors in this history:(for pedigree see p. 964)2. the ancestor, naurang singh, owned both ancestral and self-acquired property held jointly by himself and his five sons. in the year 1893, on 7th january, he executed a document entitled 'deed of partition' which will be found at p 57 of the paper book. one of the important points that we have to decide in this appeal will be the effect of this document on the status of the family. one of the immediate results of the deed was that jai karan singh the eldest son, began to live separately. naurang singh died on 5th may 1895. within a few months of his death (according to one party six months.....

Mukerji, J.

1. This is the plaintiff's appeal. The following pedigree will explain the history of the case and the relationship among themselves, of the actors in this history:

(For pedigree see p. 964)

2. The ancestor, Naurang Singh, owned both ancestral and self-acquired property held jointly by himself and his five sons. In the year 1893, on 7th January, he executed a document entitled 'Deed of partition' which will be found at p 57 of the paper book. One of the important points that we have to decide in this appeal will be the effect of this document on the status of the family. One of the immediate results of the deed was that Jai Karan Singh the eldest son, began to live separately. Naurang Singh died on 5th May 1895. Within a few months of his death (according to one party six months and according to the other, some 15 months) Dirgbijai Singh died. Mt. Manraj Kunwari's name was recorded in the place of her husband in the khewat. In 1914, Fateh Bahadur Singh and Raghuraj Singh alias Banke Singh, instituted a suit against Manraj Kunwari, to obtain a declaration that she was a widow of a joint Hindu family and had no right to the property over which her name had been recorded in the khewat. In the alternative, they claimed possession over two-thirds of the property, on the ground that the remaining one-third belonged to the third brother Balkaran Singh who was made a proforma defendant, see p. 107 of the printed record.

3. After some time, the parties, excepting Balkaran Singh, came to terms and an agreement, to be found printed at p. 113 of the record, was executed on 18th May 1916. On 12th June 1916, the learned Subordinate Judge passed a decree in that effect, that after the decree was made in favour of Fateh Bahadur Singh and Raghuraj Singh, on 12th June 1916, either Balkaran Singh or his son Gandharp Singh instituted a suit against the two successful plaintiffs for recovery of his third share in the property of Dirgbijai Singh, and succeeded in that suit. This is, presumably, the reason why Gandharp Singh has been made a party to the present suit.

4. The principal defendants contend that the only person who separated from the family was Jaikaran Singh and that as a matter of fact and as a matter of law, the rest of the family remained united and Dirgbijai Singh died as a member of the joint Hindu family, that Mt. Manraj Kunwari's name was recorded in the khewat for the sake of her consolation, but she was evilly influenced by certain adversaries of the defendants and they instigated her to institute suits for

Babu Naurang Singh (died 5th May 1895)


Daulat Kuar


| | | | | |

Jaikaran Balkaran Dirgbijai Fatah Raghuraj Singh Mt. Harkraj

Singh Singh Singh Bahadur alias Banke Singh Kunwari

| | | |

Jagannath Gandharp Singh Mt. Manraj Kamta Prasad

alias Gannu Singh Kunwari (wife)


Mt. Jasodra Kuwari

daughter=Hanuman Singh


Nirman Bahadur Singh, son

favour of the plaintiff for the entire amount of the property in suit and not only two-thirds see the decree which is on the record but which has not been printed. Being dissatisfied with this agreement on the part of her mother Mt, Jasodra Kunwari, with her son, the present plaintiff-appellant, instituted the suit out of which this appeal has arisen, to obtain a declaration that Dirgbijai Singh died separate from his brothers and that the agreement executed by Mt. Manraj Kunwari was of no effect and consequence on the interest of the reversioners for the time being.

5. To this suit, the two surviving brothers of Dirgbijai Singh, viz., Fateh Bahadur and Raghuraj Singh and the son of Balkaran Singh, viz., Gandharp Singh are parties as principal defendants. Mt. Manraj Kunwari has been added as a proforma defendant. We are told, though there is nothing on the printed record to arrears of rent and ejectment of tenants and ultimately to make an application in the revenue Court for separation of her share by partition, that these unlawful acts on the part of Manraj Kunwari led to the institution of the suit in 1914 which was ultimately compromised, and rightly compromised, that the said decree in the suit of 1914 is binding on the plaintiff and the suit is barred as res judicata and that the claim is also barred by time. During the pendency of the suit Mt. Jasodra Kunwari died and her son was left as the only plaintiff in the suit.

6. The learned Subordinate Judge framed the necessary issues and found on all the issues against the plaintiff.

7. The points that we have, therefore, to determine are all the points that arise in the suit and they may be stated as follows.

1. Whether the suit is time-barred

2. Whether the suit is barred as res judicata?

3. Whether the agreement executed by Manraj Kunwari is binding on the plaintiff?

4. Whether Manraj Kunwari executed the agreement of 1916 with full

knowledge of its effect?

5. Whether Dirgbijai Singh died separate from his brothers?

8. The first point that calls for decision is the point of limitation. The learned Subordinate Judge applied Section 120, Lim. Act and as the suit had been filed more than six years after the making of the agreement, he thought the suit was liable to be dismissed as barred by time. It is, however, clear that if Article 120 applies, as it undoubtedly does then the cause of action for the plaintiff who is a minor of 7 years of age, could not have arisen till his birth. It could not be said that the cause of action arose in 1916, Besides, the surviving plaintiff being a minor at the date on which the cause of action arose and the date of the suit the suit cannot be time barred.

9. The learned Counsel for the respondent has argued that the cause of action would arise in the year 1916, even though the appellant was not born on that date. As an authority, he cited the case of Ranodip Singh v. Parmeshar Prasad . That case has no application whatsoever. That was a case of a Hindu father selling off property and the sons suing for setting aside their father's alienation. Article 126 applied to the case and the starting point of alienation was 'not' when the cause of action arose, but 'the date of the taking of possession by the alienee.' The starting point was a definite one and whether the plaintiffs or any one of them were born or not at the date of the alienation the limitation began to run all the same.

10. I hold that the suit is not barred by limitation.

11. The next question of importance is that of res judicata. It has been argued that Mt. Manraj Kunwar represented the entire estate of Dirgbijai Singh and a decree, although by consent, obtained against her by the, first two defendants would operate as res judicata against persons claiming as reversioners. The principle is now well recognized that the widow, although a limited owner, represents the entire estate of the last male holder and any decision obtained against her either on a fair trial on contest, or on a bona fide compromise which amounts to a family arrangement would be binding on the estate represented by the widow. It is enough to quote one of the latest cases on the point, Kunni Lal v. Govind Krishna [1911] 33 All. 356. But the case in my opinion has no application where the widow does not accept the position of representing the estate and agrees that there is no estate to represent. Where by way of compromise the widow says that her husband died joint with the opposite parties and therefore, she is not entitled to possession and is entitled only to a maintenance, it cannot be said that the widow represented the estate and a compromise honestly arrived at by her would bind the reversioners. The reason is very simple. The moment the widow says that her husband died joint, she disclaims all title to represent her husband's estate, for on her own admission, there is no estate to represent. Her act, therefore, cannot bind those whose allegation is that there was such an estate on the death of the widow that estate would devolve on them.

12. It was argued by the learned Counsel for the respondents that if this were the true state of the law a decree obtained against a widow after a bona fide contest ending in the total failure of the widow would not bind the reversioners. In my opinion, the judgment obtained against a widow in an honestly fought case, to the effect that the widow's husband died joint, would bind the reversioners. This would be so, because the widow maintained, to the last that there was an estate to represent, she did her best to represent that estate. If she lost the case, it was in spite of her attempt to save it and not because she agreed with the opposite party that there was no estate of her husband that survived his death.

13. I asked the learned Counsel for the respondents to cite one single case in which the Privy Council may have held that a decree on a widow's admission that no estate of her husband existed was binding on the reversioners. The learned Counsel could cite only the case of Mata Prasad v. Nageshar Sahai , This case, in my opinion, has no application here. When Rani Chandra Kunwar entered into a compromise with Kunwar Narendra Bahadur, Kumar Narendra Bahadur was the reversioner on the death of Chandra Kunwar and there was nobody else who could take at that moment, on Rani Chandra Kunwar's death. Their Lordships take care to say that the compromise was the best 'in the circumstances' of the case. Even if the Rani's husband had been separate, the Rani could not claim anything beyond the life estate and that life estate she got by a compromise with Narendra Bahadur, In the last but para. 1, at p. 899, (of 47 All.) their Lordships say:

Narendra Bahadur was in their Lordships' opinion, the nearest agnate of Wazir Chand. If the property was subject to the provisions of Hindu Law, as their Lordships find, whether he was joint or separate from Wazir Chand, he was entitled to the property on the death of the widow. The compromise in fact, gave effect to this rule of the Hindu Law.

14. This was the real reason of the decision of their Lordships and this in no way lays down that a lady who disclaims the very title to represent the estate, must yet be regarded as representing the estate, so as to bind the reversioners who would succeed, if there were an estate.

15. In my opinion, the decree passed on foot of the compromise on 12th June 1916 is no bar to the maintenance of the present suit. The third question is whether the agreement executed by Manraj Kunwar is binding on the plaintiff. The reasons given in deciding point .2 apply to this issue and I hold that the agreement entered into by Manraj Kunwar, however bona fide her act may have been, is not binding on the plaintiff,

16. Point 4.-In view of my finding on issue 3 it is not necessary to decide the question whether Manraj Kunwar executed the agreement of 1916 with full knowledge and appreciation of its terms and effects. The direct evidence adduced on behalf of the respondents on this point is very poor but circumstantial evidence is no doubt strong. The immediate cause of the institution of the suit by the first two defendants was that Manraj Kunwar had filed an application for partition of the village Narkhoria. After the suit in the civil Court had been decided, one would expect, Manraj Kunwar would press her application for partition in the revenue Court, if she thought that the compromise gave her a right to remain in possession in the place of her husband. The suit was finally disposed of in 1916, and the fact that Manraj Kunwar never took any steps to find out how the suit had been decided and the fact that her name was removed from the villages other than those over which she was allowed to remain in possession in lieu of maintenance, go to show that Manraj Kunwar knew what she had done. I hold that Mt, Manraj Kunwar knew the effects of her own act and the compromise is undoubtedly binding on her. But as I have said, this is immaterial. If the agreement is binding on Manraj Kunwar, it is not binding on the plaintiff.

17. Point 5.-This is the most important point in the case. The history of the family is given in the partition deed of 7th January 1893. It was executed by Narendra Singh alone. He said that he was possessed of both ancestral and self-acquired property and he was living jointly with his sons. He said that in his lifetime there was a dispute between himself and his sons about partition of property and therefore, in order to remove disputes he thought it necessary to make a partition during his lifetime of the property among his heirs, so that, after his death there might be no dispute of any kind among all the five sons of his about both the moveable and immovable properties left by him. He accordingly reserved for himself and after him for his wife, a small property (an eight annas share) in village Charibund and divided the rest of the property among his five sons. The mode of division is very clearly given in the schedule, which is a part of the partition deed, at p. 59 of the record. The eldest son Jainarain got a fifth share in the village of Narkhoria and the entire shares of the family situated in two villages. The rest of the property was divided in equal shares among the other remaining four sons. Naurang provided that, on his death and on the death of his wife, the property in Charibund should be divided equally among his five sons. He divided the family house in this way that he gave the residential house to his four sons and a small shed and a female elephant to his eldest son. The father had a debt of Rs. 2,000 and the partition deed recites that Jaikaran Singh gave him one-fifth of that, namely Rs. 400 in cash. The result was that Jaikaran was exempted from paying his father's debt. Naurang Singh further provided that if any of his four sons whom he described as joint, died childless (la aulad) and left a widow, she would get only maintenance and not a share in the property, He further provided that if any of the four sons inherited any property he should be deprived of his share in the ancestral property. On foot of this deed it is contended on behalf of the appellant that the necessary legal effect of, the deed was a splitting up of the family into six portions, five portions being represented by each of the sons and the sixth by the father.

18. According to the deposition of the defendant, Raghuraj Singh alias Banke Singh, Dirgbijai Singh died six months after his father's death. The father himself died a little over two years after the execution of the deed of partition. The time that elapsed between the execution of the deed of partition and the death of Naurang Singh and Dirgbijai Singh was not so large as to enable us to expect the existence of clear and cogent evidence indicating the separation of the family. All that we know is that Jaikaran Singh, who was a very troublesome man, became entirely separated and the father and the other sons continued to live in the old dwelling-house, I would further note that mutation of names did not take place till the death of not only Naurang Singh, but also that of Dirgbijai Singh. On the death of these two men, the property that was held in the family excepting the property given to Jaikaran Singh, was divided into four equal shares according to the terms of the deed of partition, which is expressly quoted as a deed of partition and Manraj Kunwar's name was recorded where Dirgbijai Singh's name would have been recorded had he been alive: vide p. 82, para. 3: It is true that in that very application the surviving brothers of Dirgbijai Singh said that they wanted to have the name of Manraj Kunwar recorded 'simply in order to please her,' but, as a matter of law, any statement made by a party cannot be evidence in his favour. The fact remains that Manraj Kunwar's name was recorded. The further fact is established that during the course of this mutation, the name of Daulat Kuar, the mother was recorded with respect to the village of Charibund as contemplated in the deed of partition, and further on her death, the names of the four surviving sons and that of Manraj Kunwar were recorded over this property on the death of Daulat Kuar. Manraj Kunwar was therefore allowed to have that share which would have fallen to her husband if he had been living. These facts and the fact recited in the plaint of 1914, namely, Manraj Kunwar had been suing for recovery of arrears of rent, for ejectment of tenants, and had applied for partition, all go to indicate that Manraj Kunwar did exercise possession over her husband's share. But when all is told, the fact remains, that we have not got any clear evidence as to what happened between the date of the deed of partition and the deaths of Naurang and Dirgbijai Singh which followed in quick succession. In my opinion, we have to decide the case on a proper construction and on a consideration of the legal effects of the deed of partition. If the deed of partition effected a separation among the sons inter se, the mere fact that the share of Dirgbijai Singh was not separated by metes and bounds will not, in my opinion affect the status of the family, if it had been, as a matter of law, split up by) the deed of partition,

19. Dr, Katju has argued that the father in his lifetime was competent, under the Hindu Law, to effect a separation in the family and he has quoted from the Mitakshara: see Ch. 1, Section 3, Colebrooke's Translation). The original text has also been put before us. Yajnavalkya says that if and when a father wants a partition, he may divide the sons. For this purpose, he may give the oldest son the largest share or he may divide the inheritance among the sons, equally. Mr. Peare Lal Banerji on behalf of the respondents had relied on the commentary of Vigyaneshar where he says that the father may separate the sons 'from himself.' His argument; is that the provision as to partition by the father made by Yajnavalkya relates only to the father who has separated himself from the sons and does not relate to a separation of the sons, inter se. This interpretation, however, is not commendable. The second sentence in the sloka mentions unequal divisions among sons and this alone is sufficient to indicate that the sons could also be divided among themselves. In Kandasami v, Doraisami Ayyar [1879] 2 Mad. 317. the same interpretation was put on the same text by that eminent Judge, Muttusami Ayyar. Again, Mr. Banerji has argued that where a father is authorized to make equal division among the sons he has to give his wives a share equal to that of the sons: see Ch. 1, Section 3. para. 9, Colebrooke's Translation. It is urged that where, as in this case, the father has not given a share to his wife equal to that of the sons, it must be held that the partition by the father was illegal and cannot be upheld, This interpretation is hardly correct. It might be that the wife could claim an equal share with her sons, but it was really for her and her alone to say whether she has not been fairly treated. I have no doubt that under the Hindu Law a father has a right to divide up the family at any moment he likes, provided he gives his sons equal shares with himself.

20. Then it remains to see whether this intention of the father has been carried out by the language employed by him. I have no hesitation in coming to the conclusion that this intention has been effectually carried out. I have already quoted from the text of the deed and have pointed out that the father mentioned that there was a dispute among the sons and he wanted the separation of the sons.

21. The apprehension that, on the death of the father disputes might arise, among all the five sons, was one of the reasons for the execution of the deed and was one of the motives why Naurang should separate the sons and also himself. Beading the document as a whole I have not the least doubt that the father did separate himself and did divide up the five sons by giving each an equal share and thenceforward the family became a separated family,

22. On behalf of the respondents it has been urged that the provision in the deed of partition that if one of the sons died issueless, his widow should get only maintenance indicated that the father did not contemplate a division among his four sons other than Jaikaran. It is further urged that the words 'if any of the four sons who ate joint' also indicated the father's intention not to separate these sons. It is sufficient to say that by this provision the father wanted to do which he had no authority in law to do. At the date of the execution of the deed the sons were, in fact, joint with the father and it was by operation of the deed itself that separation in law was brought about. If, therefore, on 7th January 1893, the father said that the four sons were joint he did not necessarily imply that the sons were to continue joint after the execution of the deed. Then it was only in the case of one of the four sons (other than Jaikaran) dying issueless that the rule was to come into operation. The word 'la aulad' in vernacular means 'issueless' or without any son or daughter. That this is the popular meaning of the words 'la aulad' is not denied. Although 'wald' means a son the plural form 'Aulad' means sons and daughters. To satisfy myself further on the point I consulted Richardson's and Far Hang Asfiaya dictionaries and both say that the word 'aulad' means 'issues' and is sons and daughters. The counsel for the respondents could not cite any authority to show that the meaning given in these two dictionaries was, in any way incorrect. That being the case, the desire of Naurang Singh was that only in the case of a son dying without a daughter or a son, the widow was to get nothing in the way of maintenance and some pocket money, This was neither a rule applicable to a joint Hindu family nor to a separated family.

23. It must be clear that Naurang had his own ideas about the proper rule of inheritance and he tried to impose it on his sons. This being beyond his power the provision becomes ineffective. Again the provision that the sons were to lose their properties, under certain contingencies, was beyond his competence. As I have said, reading the document as a whole, I am satisfied that the family was split up and at the date of his death Dirgabijai Singh was a separated Hindu, in law, if also not in fact.

24. The result of my findings, on the above issues, is that the suit of the plaintiff, Nirman Bahadur Singh, ought to succeed and I would grant him a declaration that the compromise entered into by Manraj Kunwar in the Suit No. 196 of 1914 and the decree that followed is not binding on the reversioner who may succeed on the death of Manraj Kunwar. I would further allow the plaintiff his costs both in this Court and in the. Court below.

Niamatullah, J.

25. I took time to consider the various questions which arise for decision in this case, and have since had the advantage of reading the judgment of my learned colleague, with whose conclusions I find myself in agreement. The most important question in the case is the one relating to the interpretation of the deed of partition dated 7th January 1893, by which Naurang, Singh purported to divide his property among his sons, reserving part of it for himself. The deed was probably drawn up by a layman not conversant with the intricacies of Hindu Law relating to joint family property, and hence the difficulty in arriving at a definite conclusion regarding the intention of Naurang Singh as to whether he desired all his sons to separate from one another. Reading the deed as a whole, I am of opinion that Naurang Singh intended a complete disruption of his family, each son of his holding in severalty what he allotted to him. The predominant motive stated in the preamble of the deed for executing it is to remove all chance of friction between any two members of his family, after his death. The deed recites:

In order to remove disputes for ever I think it proper to partition during my lifetime the said property among my heirs, and it is necessary as well as my duty to partition the said property during my lifetime among my heirs, so that after my death there might arise no dispute of any kind among all the five sons of mine about the moveable or immovable property left by me. Therefore. I... divide my muafi, ancestral and self acquired property... as well as the debts due by me, as specified below, among all the five sons of mine mentioned above and put each of them in possession of everything which each has got by virtue of the partition. Hone of my sons have or shall have right or power to interfere with anybody contrary to the partition made by me.

26. And again:

Each of my sons shall enter into possession of the property partitioned by me and pay Government revenue, consider the property to belong to them for ever and remain in possession and enjoy it generation after generation. Each of my sons shall get my name removed from the patti dari khewat against the share partitioned, and get his name entered; otherwise I shall do so.

27. The residential house was given to four of his sons, the fifth, Jai Karan Singh, being otherwise compensated. The total debt, amounting to Rs. 2,000, was distributed among the five sons, the share of each being specified as one-fifth. The properties specified at foot of the deed were distributed among the five sons. Those allotted to Jai Karan Singh are shares in villages in which no interest was reserved for himself or for any of the other sons. The remaining four sons were given one-fourth share each in a number of villages, that is, they were to hold those villages or shares therein as tenants-in-common in specified shares. It is significant that the distribution of shares among the five sons was made by a tabular statement with five columns, one headed by the name of each son whose share is separately specified in his column. If there had been nothing else in the deed, no question could have arisen as regards the intention of Naurang Singh as to whether he intended his sons other than Jai Karan Singh to continue as members of a joint Hindu family or to be separate from one another. A clause added towards the end of the deed has, however, created some difficulty. It provides that:

If any of the four sons, who are joint, dies childless and leaves his widow, she shall get Rs. 100 yearly in addition to raiment expenses, She shall have nothing to do with the property. If any of the four sons inherits any other property, he shall be deprived of the ancestral property. The remaining three sons shall divide his property among themselves,

28. It is argued that this clause indicates a desire on the part of Naurang Singh to treat his four sons as joint and to make the rule of survivorship applicable to them. This reading of the clause makes it in direct conflict with other parts of the deed already referred to. If it is possible to adopt a construction which harmonises it with the rest of the deed without violating the language used in it, such construction is to be preferred. The clause does not, in my opinion, provide a rule of survivorship to apply to the four sons, but imposes a condition which confers a contingent interest on each of the four sons in the property allotted to any other of them. In other words, it lays down that if any of his tour sons dies childless, his share would devolve on his brothers other than Jai Karan Singh. The contingency contemplated by the clause has not happened, as Dirgbijai Singh did not die childless having left a daughter. The expressions used in the deed is 'be aulad,' which has been correctly translated as 'childless. The object of Naurang Singh evidently was to exclude Jai Karan Singh's line from inheriting any part of the property allotted to the other sons. The condition is of the same nature as another which follows it, namely, that if any of the four sons goes out to another family having inherited the estate of someone whose place he occupies as regards residence, enjoyment of property etc., he would forfeit his ancestral estate, It is not necessary to decide how far these conditions could have been validly imposed by the father in dividing the family property among his sons. They are in the nature of defeasance of the estate granted to each of the four sons on the happening of a contingency; and as already stated, no contingency contemplated by the clause has happened. It has not been argued before us, nor was it a case made in the pleadings, that the respondents claim is based on the first condition. The clause in question was relied on as throwing a light on the intention of Naurang Singh regarding the continued jointness or separation among his sons other than Jai Karan Singh Construing the deed with the condition aforesaid, I am of opinion that it does not in any way detract from the clearly declared intention to be gathered from other parts of the deed already adverted to that the four sons should hold the family estate in severalty.

29. None of the sons took any exception to the partition made by the father either as regards the allotments of the severance of their respective interests. On the contrary, their conduct in course of the mutation proceedings, which took Place in 1826, clearly establishes that they had agreed to what had been done by their father in executing the deed of partition, dated 7th January 1893 The name of Naurang Singh continued to be recorded m the revenue registers till his death and thereafter till after the death of Drigbijai Singh who died a few months after Naurang Singh. The patwari made a report for entry of the name of Jai Karan Singh along with those of the other three brothers, Drigbijai Singh having died. To this the three brothers objected, relying on the clause which entitled them to succeed to the interest of their deceased brother Drigbijai Singh. They, however, consented to the name of his widow, being entered 'simply in order to please her.' It is significant that they did not allege any jointness between Drigbijai Singh and themselves and did not rely upon the rule of survivorship as entitling them to succeed to the interests of the deceased. They relied solely on the condition occurring in the deed of partition which has been already discussed and which entitled each of the four brothers to succeed to the estate of any other of them on his dying childless. Apparently, they regarded Drigbijai Singh to have died 'be aulad,' taking that expression to mean sonless.

30. By a mortgage deed, dated 26th May 1911, Fateh Bahadur Singh, one of the defendants-respondents, mortgaged some shares allotted to him by the deed of partition. Though the deed of partition is not referred to, the shares hypothecated are identical with those given to him in those villages by that deed. Similarly, Raghuraj Singh, another defendant-respondent, mortgaged his two anna share in village Semra out of the four anna share allotted to him by the deed.

31. The evidence adduced on behalf of the defendants, no doubt, tends to show that, after the deed of partition, Naurang Singh and his four sons lived in the same house and had joint mess. As regards Naurang Singh, there can be no manner of doubt that he became separate from all his sons, inasmuch as the deed provides, in clear terms, that he reserved to himself an eight-anna share in village Chari Bandh, which, he declared, would devolve on his widow for life and thereafter on his five sons in equal shares. If jointness and common residence was consistent with Naurang Singh being a separate member of the family, there is no reason why the same consideration should not apply to the case of his sons other than Jai Karan Singh. Consistently with the object stated in the deed, no jointness of any kind in the property was left, though it might have suited to the convenience of Naurang Singh and the four sons, some of whom were young, to have joint mess and residence. It is the case of the defendants-respondents that the four sons or their descendants have been separate in all respects for about 12 years before the institution of the suit and that the shares allotted by the deed of partition are held by each as his separate property. For these reasons, I hold, in agreement with my learned colleague, that Drigbijai Singh died a separated member of the family.

32. In view of the finding arrived at by me, it is not necessary to decide the question whether a father can not only divide the family property among his sons a power which he undoubtedly has: see Kandasami v. Doraisami Ayyar (4) and the authorities discussed there, but also to declare effectively that each of his sons is to enjoy the property allotted to him as a separated member, regardless of the wishes of the sons in that behalf. In my opinion, it is a moot question whether the father's power extends to putting an end to the jointness among his sons, so as to preclude the application of the rule of survivorship, even though the sons otherwise desire. The sons may not be competent to object to a fair division of the family property being made by their father; but it may be that they prefer to enjoy the property allotted to them in a state of commensality, specially where no division by metes and bounds has been made by the father, who merely defines the share of each. In such a case, if the sons, or some of them, refuse to separate from one another, accepting the property allotted to them by the father, the question may arise whether it is a case of continued jointness or reunion. I am not called upon to consider this aspect of the case, as I have found that none of the sons objected to the father's action in separation of all his sons from one another. On the contrary, as shown already, they acquiesced in the arrangement made by Naurang Singh, and acted upon it.

33. As regards the effect of the compromise, I am not prepared to go so far as to hold that in no circumstances can a Hindu widow enter into a compromise, the effect of which is to declare her husband to have been a member of joint Hindu family whose interests devolved by survivorship on the other members to the entire exclusion of the widow as an heir. I am, however, of opinion that the compromise dated 18th May 1916, between Mt. Manraj Kuari on the one hand and her husband's brothers, Fateh Bahadur Singh and others, on the other, is not binding on the appellant, because it has not been established to my satisfaction that Mt. Manraj Kuari, a pardahnashin lady, entered into it with full appreciation of the circumstances relating to her husband's interests in the family property. There is no evidence to show that she had any competent legal advice as regards her position after her husband's death.

34. The effect of the deed of partition, specially the condition which makes the property of one of the four song descendible on the rest of them in case the former dies childless (be aulad), should have been properly comprehended by her before she could judge of the fairness or otherwise of the compromise into which she entered. The deed is so drawn up as to make it difficult for her to understand her position regarding her husband's property and to realise for herself the chances of her success in case the litigation between her husband's property and herself were carried on to a conclusion. If, after fully understanding the doubtful character of the deed of partition, she enters into a fair compromise to avoid litigation, the reversioners may be bound by her action The fact that she completely abandoned all contest to the claim put forward by her husband's brothers is a clear indication that she thought or was given to understand that their claim was unanswerable. If she had any competent advice in the matter and the real character of the deed of partition had been explained to her, I have little doubt that she would never have agreed to a compromise on extremely unfavourable terms, by forgoing the entire estate of her husband for herself and all the reversioners of her husband. It is true her story as regards the circumstances under which she was persuaded to enter into the compromise cannot be believed; but it was for the defendants respondents, who relied on the compromise, to establish the circumstances giving rise to the inference that the compromise was the result of a bona fide settlement, agreed to by the lady to avoid litigation and reasonably believed to be fair and proper. The only direct evidence is that of the defendant Bankey Singh. It does not, however, indicate any attempt having been made to bring home to her the effect of the compromise, dated 7th January 1893 and her rights thereunder as to which she was under a complete misapprehension. The only persons who, according to Bankey Singh had access to her and who could have advised her were her mukhtar, Sheo Narain Pande, since deceased, and Gijraj Singh, a relative of her daughter's husband. How far these people themselves understood the effect of the deed of partition and the lady's chances of success in case the litigation was carried on to the end does not appear. It may be that the terms of the compromise itself were fully understood by them and by the lady; but under the circumstances of the case I think it was not enough to make it binding on the lady or the reversionary heirs. For these reasons, I hold that the compromise in question does not stand in the way of the plaintiff-appellant obtaining the relief claimed by him.

35. On the question of limitation, I am in entire agreement with my learned colleague, and have nothing to add.

36. In view of the findings noted above I concur in allowing the appeal with costs.

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