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 Run war 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 Janeswar 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 deposit- ' ed in the Office of the District Registrar 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 Janeshar 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 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, Exhibit 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 Ruhli Kunwar was appointed as their guardian ad litem for the suit. Ruhli 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 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 July 1903, was order- ed 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 Subordiate Judge made a record of his proceedings which is to be found in Exhibit 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 July certain items of zemindari and house property were allotted to the three sons of Lala Paras Das. Lots 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 moveables; debts, etc., and ultimately on the 19th 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, Exhibit A, is to be found at page 209 of the printed record. This decree embodies the compromise arrived at on the 17th 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 zemindari property were drawn on the 24th 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 July 1903 and remained in possession in accordance with the decree.
14. It has been mentioned already that Musammat Ruhli 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's 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 Exhibit 5 at page 229 of the record); The date of this decree was the 15th 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 parti-tion was alienated either during his, lifetime or after 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. 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 Lala 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 results was that on his death the pro-party came into possession of his mother Musammat Jawantri Kunwar. This lady died on the 25th 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. Each 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 Exhibit 6. Roughly speaking, the result of ' the, decree was to give to each of the plaintiffs, namely, Paras Das and Umrao Singh, a 4-annas share in the immoveable estate of Pardaman Kunwar. The re-maining moiety, was to become the property of the minor defendant Dip Chand.
23. The value of Paras Das's 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 it in this judgment as the Pardaman -Kunwar properly.
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 parti-tion, Paras Das drew up certain lists of the immoveable 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 zemindari 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 Pardaraan 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 canflned to that portion of the immoveable 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 farther 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 parsed 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 his 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 be-cause 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 blinding was that the Subordinate Judge who decided th(c); 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 Paras 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 fund 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.
36. I have already mentioned that the Subordinate Judge on this issue found that the property was self-acquired property. There can be no doubt that the title under which Paras Das had a right to claim this property was a title by collateral inheritance and if after the death of the widow, Musammat Jawantri. Kunwar the property had come to him without contest, it would without question have been self-acquired property in his hands.
37. It is the fact, however, that Paras Das had to resort to litigation in order to obtain a share of the property in question and it has, therefore, to be considered how this fact has any bearing upon the position.
38. The case for the defendant in this matter is that the property must be treated as joint family property on the ground that money belonging to the joint family funds was spent in acquiring it, It is said that for the purpose of prosecuting the suit, to which I have already referred, asum of Rs. 9,000 or Rs. 10,000 was spent
39. On the other hand, the case which the plaintiff sought to make out by his evidence was that while a sum of money was taken in the first instance from the joint family chest by Lala Paras Das, it was taken merely by way of loan and certain evidence was put forward for the purpose of showing that the money so borrowed was re-paid into the joint family fund by Paras Das in the course of a year or two, the re-payment being made out of the annual income of the property which Paras Das obtained as the result of his suit..
40. The evidence on this point is somewhat meagre. There ought to have been documentary evidence in the shape of account -books which would have settled this question once for all. Neither side produced any account-books in the. Court below. The plaintiff produced no accounts himself but called upon the defendant to produce hers. She produced none on the ground that there were no account-books in her possession. The plaintiff did not go into th(c) witness-box to deny that he had got any accounts. The, position is an unsatisfactory one for there cannot be the least doubt that the account-books belonging to the joint family were divided at the time of the partition into three lots, one lot being assigned to each of the sons.
41. The question, therefore, has to be decided upon the evidence of two witneses named Hardwari Lal and Atma Ram.
42. The witness Hardwari Lal was put forward for the purpose of showing that in order to prosecute the suit Paras Das had borrowed Rs. 9,000 or Rs. 10,000 from the family fund and had re-paid this amount a year or two after. The substance of the evidence given by this witness is this, that in the year 1903-04 he had occasion to examine the family accounts in the course of a suit which was brought by Musammat Bachcho Kunwar against her husband Dharam Das. The evidence which he has given in this trial consists of statements' regarding the entries which he saw in the family accounts at the time above-mentioned which was some 17 years before the date upon which he was giving his evidence.
43. I have already referred to the suit which Musammat Bachcho Kumwar brought against her husband Dharam Das and referred to the fact that this lady got a decree against her husband from the High Court in appeal. A copy of the judgment of the High Court is on the record [see Exhibit 5, page 229 of the printed record Bachcho Kuar v. Dharam Das 28 A. 347 : 3 A.L.J. 155 : A.W.N. (1906) 34]. A perusal of that judgment shows that in that suit the account-books of the family, or some of them, were before the Court. In the High Court's judgment we find references to entries in those account-books.
44. It is argued, however, on behalf of the defendant-appellant that the statement of Hardwari Lal that he saw and examined those accounts during the trial of the suit in 1903-04 cannot be accepted. It is pointed out that he spoke of his inspection of' the account-books haying taken place in the early part of the winter of 1903-04 and it is argued that it. has been proved pay a reference to the record of that suit that the account--booksi were- not brought into Court in that suit till the month of February 1904.
45. I am not disposed to pay any serious attention to this objection to Hardwari Lal's evidence and the Court below made light of it. After all Hardwari Lal Was being examined some 16 or 17- years after the date of the earlier suit and it is possible that his memory might have failed him with regard to the date on Which he saw the accounts and as the Court below observes, it can hardly be;doubted that if he desired to do so he could have had access to the account-books without applying to the Court for permission to inspect them. The evidence shows that hehadbeen an accountant in the family and his story is that in that earlier suit he was asked by Dharam Das to examine the account-books in order to see. whether Paras Das had borrow-ed money from the joint family fund for the purpose of prosecuting this-suit -and in order to ascertain how the income of the property had been dealt with by Paras Das after he had got his decree.
46. I am not prepared to reject Hardwari Lal's evidence as false evidence On this account. At the same time it has to be admitted that the value of his evidence rests upon whatever confidence can be placed; upon the accuracy of hismemoiy, and it is fair to mention here that at the time he was giving his evidence in the Court below he was still in the, employment of the plaintiff Janeshar Das with whom he has been in service he says, since the year 1903.
47. The substance of the statement made by Hardwari Lal is that Paras Das kept two sets of accounts; one set belonging to the family business which was that of banking, and the other set consisting of the books of his private accounts. The witness says that Paras Das had a separate ledger account of his own in the family account-books and he deposed that having seen these accounts in the Course of the suit brought by Bachcha Kunwar against her husband, he remembers that the entries showed that Paras Das had borrowed Rs. 9,000 or Rs. 10,000 from the family fund and had re-paid this sum out of the income of the Par-daman Kunwar property He states that the amount which was borrowed by Paras Das for the purposes of that litigation was shown as a debt in the personal account of Paras Das with the family until it was re-paid.
48. It may be mentioned here that Hard-wari Lal does not appear to have been examined as a witness in the suit brought by Bachcho Kunwar against her hushand.
49. The statement of this man is the only evidence upon the record to show that in order to prosecute the suit for the Pardaman Kunwar property Paras Das borrowed a sum of money from the joint family funds and re-paid it. The evidence of the other witness Atma Ram, which I shall notice presently, does hot touch upon this point. Atma Ram in the witness-box would not commit himself to any statement regarding particular entries in the account-books and so he could not say whether any definite sum had been borrowed by Paras Das and re-paid to the joint fund. In cross-examination he stated definitely that he could not remember having seen- any entries relating to this particular sum of money.
50. 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 (Exhibit 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 Lala 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 Sub-ordinate Judge goes on to say that the decision of the High Court is the best guide in this case.
51. I take it there fore that the learned Judge of he Court below admitted this judgement 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 Collector of Gorakhpur v. Palakdhari Singh 12 A. 1 : 6 Ind. Dec. (N.S.) 751.
52. 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.
53. 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 alies acta.
54. 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 re-paid. 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 by 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 Bahcho Kunwar v. Dharapi Das 28 A. 347 : 3 A.L.J. 155 : A.W.N. (1906) 34 a copy of which as I have stated, was admitted in evidence in. the Court be-low..
55. I think it safer to discard altogether the evidence of Hardwari Lal.
56. 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.
57. 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.
58. 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.
59. How does the evidence stand on this point?
60. The principal witness is Atma Ram whose name I have already mentioned. He had been, as he says, a karinda of Paras Das and he knows about the accounts which were kept in the lifetime of Paras Das. He speaks of two sets of accounts (1) the accounts belongings to the firm which carried on business under the name of Paras Das Bahadur Singh, the joint family business of which Paras Das in his lifetime was the head, and (2) the separate accounts of his own property kept by Paras Das.
61. According to this witness Paras Das had separate account books in order to maintain a separate record of the income of the property which he had got in the litigation against Dip Chand, and here it may he observed that there does not appear to have been any occasion before this for Paras Das to maintain a separate account of his own property for there is nothing to show that before he got this Pardaman Kunwar property by suit, he had any separate property of his own.
62. In addition to the separate set of accounts which Paras Das maintained, the witness says that Paras Das kept a personal account with his own firm of Paras Das-Badri Singh.
63. Speaking of the income of the Pardaman Kunwar property, the witness states as follows:
In the account-books of the firm there was an exclusive account of Paras Das and the income of the property of Pardaman Kunwar was first credited in the account-book of the firm of Bahadur Singh-Paras Das and then it was entered in the account-book of the set of accounts which constituted the basta of the income from the Pardaman Kunwar property.
64. From this it is to be gathered that as the income was received from this property, it was credited in the first instance in the private banking account which Paras Das kept with his own firm. Paras Das might very well bank his money with his own firm for the business of the joint family was a banking business and his keeping his account in this way would not necessarily indicate that he was throwing the income of the Pardaman Kunwar property into the common stock.
65. But there are certain other statements made by this witness which according to the arguments on behalf of the appellant conflict with the above description of the course of business and these other statements have been seized upon in order to support the defendant's case. On the whole I am of opinion that the witness intended to adhere to the first description he gave of the system of accounts kept by Paras Das.
66. The witness says in cross-examination:
Before the property of Pardnman Kunwar was received, the income of each of the villages in possession of Paras Das was credited in the account-book of Paras Das-Bahadur Singh. (That is the amily account). It was not credited to Paras Pas.
67. That would necessarily be so for, as has been said, Paras Das does not appear to have had any separate property of his own before he acquired the Pardaman Kunwar property, and as the witness says, a separate account of the income of the ancestral villages was maintained in the family account-books. I take the witness to mean, therefore, that when Paras Das came into possession of this Pardaman Kunwar property, he began to bank the income of it with the firm and the entries relating to this income were credited in his personal account with the Bank.
68. The principal statement of this witness, upon which the learned Counsel for the defendant have fastened, reads as follows:
Dip Chand was a minor when the case was started. Makund Lal is Dip Chand's natural father. Paras Das was under the impression that on Dip Chand's attaining majority Makund Lal would again raise a dispute. Paras Das had opened separate account-books for the Pardaman Kunwar property so that the income from that property might be ascertained.
69. We are asked on the strength of this statment to hold that the only explanation of the separate accounts of the Pardaman Kunwar property is that they were maintained merely for the purpose of meeting a suit which might be raised afterwards at the instance of Dip Chand or his father for the purpose of setting aside the compromise decree which was passed in. the year 1898 in which event Paras Das might have been called upon to account for the mesne profits of the property. And so it is argued that in the circumstances we should, as it were, regard the separate accounts as having been kept purely for show and to hold that the income from the Pardaman Kunwar property was really commingled with the income from the joint family villages.
70. I am not prepared to accept this as a fair interpretation of the evidence of Atma Ram as a whole. He does not say that the income of the Pardaman Kunwar villages was confused with the income of the family villages. On the contrary, I understand him to say just the reverse.
71. The income of the Pardaman Kunwar villages, instead of being entered in the account relating to the ancestral villages, was brought into the separate personal account which Paras Das kept with his own banking firm. That he had such an account is well-established.
72. We have not been referred to any other evidence in this connection except that of Hardwari Lal upon which I am not prepared to rely but I believe the evidence of Atma Ram and so far as it goes it leads me to the conclusion that in the matter of keeping the accounts relating to this Pardaman Kunwar property, Paras Das was treating the property as separate and self-acquired. There is no evidence to satisfy me that there was any such confusion of income in the accounts of the Pardaman Kunwar and the ancestral properties as would justify the conclusion that Paras Das had thrown this property into the common stock.
73. The fact that the same staff of servants carried out the business of collecting the revenue of all villages together and that no part of the cost of maintenance of this collection staff was debited against the private account of Paras Das would not be any safe ground upon which to found the conclusion that the property was thrown into the common stock.
74. There remains the question of the Will. Is there anything in that document which affords ground for holding that Paras Das had amalgamated his self-acquired with the joint property of the family?
75. On the one side our attention is drawn to the declarations contained in the Will to the effect that Paras Das still considered the Pardaman Kunwar property to be his self-acquired property with which he could do what he liked. On the other side stress is laid upon the manner in which. Paras Das dealt with the property in his Will when he comes to express his intentions regarding its disposal. Speaking for myself, I think it would be difficult to deduce from the language of the Will the conclusion that Paras Das had thrown his self-acquired property into the common stock: It is no doubt the fact that in drawing up his scheme for the division of the property he lumped both lands of property together in such a way as to award unequal shares. In two of the lots there is a preponderance of ancestral property, In the third lot, which ultimately fell to Badri Das, the proportion of the Pardaman Kunwar property which was award? ed to Badri Das comes to something like 70 per cent. At page 36 of the printed record there is a statment showing the composition of the various lots of zemindari property prepared by Lala Paras Das in his Will and in accordance with which the property came to be divided eventually under the partition decree.
76. I admit that there is some substance in the argument which is founded upon the method by which Paras Das was seeking to dispose of the entire body of property consisting of the ancestral and self-acquired property. On the other hand, it is to be remembered that Paras Das was dealing with the property by a Will which he was at liberty to revoke at any time before he died. 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 it 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 his suit. I, therefore, find that the Pardaman Kunwar property at the death of Paras Das was still his self-acquired property.
77. 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 lite of the minor defendants in that Suit to the compromise which was ultimately embodied in the 'final partition decree.
78. Before proceeding to discuss the effect 6f the decree in question, mention must be made of our order of the 29th 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. 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 fend sufficient (wajah magul hai) and that he accorded sanction in each instance.
79. 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.
80. 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 June 1903, some six weeks after' his father's decease (see plaint, Exhibit 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 Ruhli 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.
81. 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.
82. 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. 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 zemindari 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 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 so much before us when we examined him in this-Court.
83. It is true that there is no direct evidence to show that Lala Jambu Das was cognizant of the Will and certain statements 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 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 this 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.
84. The plaint was filed as above described and no written statements of defence were filed. On the 17th July 1903 the petition of compromise was put in before the Subordinate Judge; a certified copy of it is Exhibit B at page 143 of the record.
85. 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 July 1903, it was found that the signature of Musammat Ruhli Kunwar, who was a defendant in the case, had not been obtained and in order to get her signature it 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 July. I have already in dicated briefly what took place on that date in the presence of the parties and their Pleaders. The proceedings of the Court are all set out in the rubbar, Exhibit F, printed at page 151.
86. Without going into unnecessary particulars, the petition of compromise informed the Court that it had been arranged that the three sons should, divide the zemindari 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.
87. The only variation in 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 July 1903 in the presence of the Court. The result was that Dharam Das got lot No. 1 of the zemindari property and. lot No. 3 of the house property. Badri Das got lot No. 2 in both properties while Janes har Das got lot No. 3 of the zemindari 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 moveable and other property, and I have also referred to the fact that ultimately the final partition decree was drawn up on the 16th December 1904.
88. It is not and cannot he 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 zemindari property and I have also mentioned that Musammat Ruhli 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.
89. 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.
90. 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.
91. 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 effects 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.
92. 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 of compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
93. 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 26 B. 109 : 3 Bom.L.R. 565H. If the minor does not elect to avoid the decree, it will be binding all round.
94. 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 189,4 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.
95. 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.
96. 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.
97. 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.
98. 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.
99. 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.
100. 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 lifetime and she cannot be called upon to hand over any portion of Badri Das's estate to the plaintiff Janeshar Das.
101. 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.
102. 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.
103. I find it difficult to understand the observations of the learned Subordinate Judge nor is it at all clear tome what he meant by the ' reversionary rights ' of the minors.
104. 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's 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 effected 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 succession is 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 succession is or the chance of his succeeding to any estate 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 succession is 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....
105. 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 be-hind it.
106. My decision on this question, there-; fore, 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 en-titled to retain possession of all those properties for the course of her life-time.
107. 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.
108. It is argued on behalf of the defend-ant-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 point-ed 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.
109. 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.
110. 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 zemindari 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.
111. 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 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.
112. Lastly it is maintained that it cannot be pretended that the compromise was in any way directed towards the preservation of the family estate,
113. It seems to me, as I have said al ready, 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.
114. 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.
115. It is further to be noted that when the plaint in the partition suit was filed Dharam Das's mother, Musammat Ruhli 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 parti-tion. 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 (Exhibit B, page 143) which was put-into Court on the 17th July 1993, 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.
116. 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.
117. 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.
118. Another reason which influences me in this connection is this: I have already mentioned that Musammat Ruhli 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 consider ations, 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.
119. 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.
120. 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.
121. 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).
122. 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 and his brothers had arrived at a partition.
123. 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.
124. 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 right 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 clause 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.
125. 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 brother's 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.
126. 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.
127. 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.
128. 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.
129. 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.
130. 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 lifetime, 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 lifetime 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 lifetime of Badri Das was a matter altogether beyond the control of Badri Das.
131. 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 reason, there-fore, 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.
132. 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.
133. The parties to the suit are Jains. Lala Paras Das was one of the leading members of that community at Saharan-pur. 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 Parduman Kunwar, who died in 1895 without leaving any issue. Parduman Kunwar was succeeded by his mother, Musammat Jiwanti 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 October 1878 by compromise a decree which secured to each of them a one-fourth share in the said property.
134. 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.
135. It appears that the money required by Lala Paras Das for the expenses of a suit for the recovery of that property was taken by him from the joint family funds and subsequently re-paid 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 Exhibit B). Neither party hasproduced 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.
136. 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 Parduman 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, (Exhibit 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 be-come joint family property.
137. 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 Behari Lal, who appeared for Dharam Das in that case, and that Babu Oudh Behari 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 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 for mal 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 re-paid by him out of the profits of the property decreed in that suit, and that there was no appreciable deteriment 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 Parduman 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 lacs 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 re-paid out of the profits soon afterwards.
138. It appears, moreover, from the evidence of Atma Ram that the income of the Parduman 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 Parduman 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 Parduman Kunwar property or from the income entered in the separate khata of Lala Paras Das. The entire income from that 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 Paras 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 Parduman Kunwar property apart and did not allow it to be blended with the family income.
139. On the 16th 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 Parduman Kunwar. He significantly excluded the latter property from the category of property acquired with the aid of ancestral funds. He proceeded to declare that after his death his three sons shall be the owners and possessors of all the immoveable and moveable 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 Parduman 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, he kept his own hands free but sought to provide a curb for his sons, if they happened to have any male issue.
140. 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 he had thrown the property into the common stock in his lifetime. In his subsequent codicil of the 17 th 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 (6) the property inherited under a decree from Parduman Kunwar which he said was his own property and which he was competent to bequeath to any one he liked (Exhibit 11). He 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 Parduman 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 Parduman 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.
141. Lala Paras Das died on the 2nd May 1903, leaving his widow, Musammat Ruhli Kunwar, and his three sons, Dharam Das, Badri Das and Janeshar Das, surviving him. On the 15th June 1903 Dharam Das sued for a partition of his one-third share, without making any reference to the Will 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.
142. 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 Ruhli Kunwar, as their guardian,
143. On the 17th July 1903 Musammat Ruhli 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 Pershad, as the guardian ad litem of Janeshar Das.
144. The plaintiff and the guardians ad litem of Badri Das and Janeshar Das, and Musammat Ruhli 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 Ruhli 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 mind of the parties to the compromise, when it was drafted and filed.
145. 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 July 1903, and it was made absolute after certain out-standings and moveables were further divided on the 17th December 1904.
146. The result of the division, so effected, was that though the lots were equal in their aggregate value, the ancestral property and the Parduman 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 yieding 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 Parduman Kunwar property, Dharam Das got landed property yielding an income of Rs. 875-10-6 per year; Badri Das got landed property yieding 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 Parduman Kunwar, was similarly unequal.
147. But for the compromise, Musammat Ruhli 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 Ruhli 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 Parduman Kunwar Estate (vide item No. 18 of lot No. I of the residential property in Exhibit VI).
148. 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 Parduman Kunwar, and each of his 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 recomendation 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.
149. 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.
150. As observed by their Lordships of the Privy Council in Rani Mewa Kuer v. Rani Hulas Kuer 1 I.A. 157 : 13 B.L.R. 312 : 3 Sar.P.C.J. 314 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 guardin 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 Masammat Ruhli Kunwar and of other claims in regard to the family property, as affected by the Will of Lala Paras Das of the 16th November 1902 and his codicil of the 12th March 1903, the compromise and the decree passed on its basis, so far as they go, cannot now be impeached.
151. 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 Bachoho Kunwar, who got such property, as Dharam Das had left unsquan-dered, 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 April 1903. Badri Das died without leaving any male issue on the 26th April 1920. He left a widow, Musammat Phulwanti Kuar, 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 Parduman Kunwar estate.
152. That estate, as has already been pointed out, was the separate or self-acquired property of Lala Paras Das and was devised 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 November 1902). By the compromise of the 17th 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 Parduman Kunwar property, while Janeshar Das was given a larger portion of the ancestral property and a smaller portion of the Parduman Kunwar estate.
153. The contention of Janeshar Das is that by reason of Clause 13 of the Will of Lala Paras Das of the 16th November 1902 he became entitled on the death of Badri Das to the portion of the Parduman 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 brothers 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.
154. 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 cusom 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 Parduman 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 to the surviving members of the family as if the family had continued to be joint.
155. 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 male 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 JanesharDas, 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.
156. 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 lifetime. Badri Das left a daughter alive but no male issue. Janeshar Das, the plaintiff-respondent, has yet no children.
157. There was no male child thus available in the family whom Badri Das could have adopted. Inded, 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.
158. 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 halat 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.
159. The claim must, therefore, fail and I agree in allowing the appeal and dismissing the suit with costs here and hitherto.
160. By the Court.--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.