1. The short facts of the case are these. One Swaminatha Aiyer, who was the last male owner, died in 1859 leaving a junior widow Annapurni and his mother Kuppachi Ammal. Kuppachi Ammal managed the property as the guardian of her daughter-in-law. While doing so, she alienated certain properties in favour of the defendants' predecessor-in-title. On becoming a major, Annapurni brought a suit to set aside her mother-in-law's alienations. A decree on compromise was passed (Exhibit K), by which the alienees were given certain properties absolutely and the remainder were given to Annapurni. She died in 1909. The present suit is brought to recover the property from the alienees.
2. There is no evidence, and naturally there can be none at this distance of time, as to the circumstances which led to the compromise. The Courts below have held that the compromise was binding on the reversioners. Mr. K.V. Krishnaswami Iyer addressed to us a very exhaustive argument on that and two other questions. We may very shortly deal with the two subsidiary questions. The learned Vakil contended that a guardian of a minor widow in alienating property can only convey the ordinary limited interest possessed by the widow and not the absolute interest which, under certain circumstances, she can convey, and that consequently by the compromise nothing can pass to the alienees but a widow's interest. We are unable to accept this contention. The guardian of a minor can exercise all the powers which a minor has, and there is no ground for suggesting that the guardian intended to exercise the smaller rights and not the larger rights which her ward possessed. The second point was that the mere production of the compromise decree would not show that Annapurni in challenging the alienation was acting in the interests of the estate. We see no force in this contention. Prima facie, any person, whether a limited owner or full owner, who wishes to recover property on the ground that an alienation is invalid must be taken to have put in issue the rights of the estate to recover the property. The limitation suggested by the learned Vakil that Annapurni might have attempted to contest the alienation on grounds personal to herself seems far fetched. In our opinion her action in questioning the alienation of her mother-in-law-must be regarded as having been done for the benefit of the estate and not for, her personal benefit.
3. Now comes the very important question which was fully discussed before us. The decision in Katama Natchier v. Rajah of Shivagunga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 is the foundation for the rule of law that a decree obtained honestly against the contesting widow will bind the reversioners. The proposition enunciated in that case has been re-affirmed by the Judicial Committee in a number of cases. Amrit Narayan Singh v. Gaya Singh 44 Ind. Cas. 408 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L. J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 W.P 581 : 20 Bom. L.R. 546 : 45 I.A. 35; Kanhai Lal v. Brij Lal 47 Ind. Cas. 207 : 40 A.P 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 45 I.A. 118 and lastly Bisal Singh, v. Balwant Singh 48 Ind. Cas. 553 : 40 A.P 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16. In all these cases the decree was passed after a fair contest in Court. In none of them was there a compromise decree. From early times, the Courts in this country have held that a decree to which the widow has only consented and which was not passed after contest cannot be placed on a higher footing than a contract or alienation by her. In Sheo Narain Singh v. Khurgo Koeny 10 C.L.R. 337 this principle was enunciated, and also in Rajalakshmi Dasee v. Katyayani Dasee 12 Ind. Cas. 464 : 38 C.P 639 by Mr. Justice Mukerjee after an elaborate discussion of the case-law on the point. In Sant Kumar v. Deo Saran 8 A.P 365 : A.W.N. (1886) 129 Mr. Justice Mahmood reviewed the case-law on the point and came to the same conclusion. In Jeram v. Veerbai 5 Bow. L.R. 885 the same view was taken in Bombay. In Madras, Justices Benson and Sundaram Aiyar expressed the same opinion, although it was obiter dictum in Bhogctraju v. Adapalli Seshayya 12 Ind. Cas. 123 : 35 M.P 560 : 10 M.L.T. 179. In Bangarayuiu v. Perayyi Sastry 30 Ind. Cas. 927 : (1915) M.W.N. 810 : 2 L.W. 1025 the point was not decided though a finding was called for on the assumption that Bhogaraju v. Adapalli Seshayya 12 Ind. Cas. 123 : 35 M.P 560 : 10 M.L.T. 179 was right. In Appeals Nos. 40,88 and 130 of 1914, the learned Chief Justice and Mr. Justice Ayling have expressed the same opinion. On the other hand we have the judgment of Mr. Justice Abdur Rahim which has been concurred in by Mr. Justice Srinivasa Aiyengar in which a different view was indicated. In Calcutta very recently Mr. Justice Mukerjee, who had stated the law very elaborately in Rajlakshmi Dasee v. Katyayani Dassee 12 Ind. Cas. 464 : 38 C.P 639 appears to have changed his view. In Mohendra Nath Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954 : 21 C.L.J. 157 : 19 C.W.N. 1280 the learned Judge seems to have been influenced by the recent decision of the Judicial Committee in Bisal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A.P 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16 in holding that a compromise decree is on the same footing as a contested deoree. But in Bisal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A.P 593 : 28 C.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 36 M.L.J. 597 : 21 Bom. L.R. 611 : 45 I.A. 16 there was no compromise decree, but a decree after contest. The Patna High Court in Bam Sumran Prosad v. Shyam Kumari 47 Ind. Cas. 697 apparently agree with the later view of Mr. Justice Mukerjee. In this state of authorities and as there is no direct pronouncement by the Madras High Court we have deemed it expedient to examine the principles on which this question should be decided.
4. Mr. Ramachendra Iyer contended that, as the Judicial Committee have in more than one case held that a compromise decree which operates as a family settlement is binding upon the reversioners, there is no reason for not giving to a consent decree in favour of alienees the same effect. Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A.P 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T.25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 and Upendra Nath Bose Bindeshri Prosad 32 Ind. Cas. 438 : 22 C.L.J. 452 : 20 C.W.N. 210 are instances of family settlements based on compromise. In our opinion, there is a vital difference between family settlements based on compromise and decrees on compromise in favour of alienees. As was stated in the well-known case of Stapilton v. Stapilton (1739) 1 W. & T.L.C. 223 : 1 Atk. 2 : 26 E.R. 1 and restated in Williams v. Williams (1866) 2 Ch. App. 294 : 16 L.T. 42 : 36 L.J. Ch. 230 : 15 W.R. 657 the reason for looking with favour on family settlements is that they are calculated to bring peace to the family.
5. There are numerous cases in England in which Courts have treated family arrangements with special favour. In India, the Judicial Committee enunciated the same view long ago. It is not only the necessity of bringing peace into the family that is to be considered in a family arrangement, but considerations which are not germane to the enforcement of legal rights are often taken into account in allocating properties under it. The sanctity of an individual, the prestige and usefulness of one member of the family in augmenting the family property, although it be with the family funds, family traditions, which, though not legally enforceable, are held binding on the conscience of the members and other considerations of a moral rather than of a legal character, which a Judge should not take into account and which the council of the family alone is best fitted to deal with, often weigh in a family settlement. But in a case of alienation to a stranger these considerations have absolutely no place; ordinarily, the widow and the alienee would not be efficient substitutes for a Judge in deciding whether the estate should be burdened with the obligation or not. Certainly the reversioner should not be expected to acquiesce in a decision arrived at by persona who would prima facie not be interested in safeguarding his interests. Therefore, it stands to reason and equity that, when a widow agrees to give up certain rights of the family to alienees, the reversioners should demand that it should be proved that it was necessary or expedient to have given up those rights in the interests of the estate. It is for that reason that it has been held in the decisions to which we have made reference that the consent given by the widow should not be placed upon a higher footing than a conveyance by her. Further, to a judgment given by the Court, the unbiassed mind of the presiding officer is applied, whereas the Court is bound, unless the agreement contravenes public policy or principles of a like nature, to sanction the compromise. The basis of a consent decree is an adjustment out of Court by the parties. The consent decree, therefore, approximates to a second alienation by a widow in the light of additional circumstances, it may be. Nonetheless, in essence, it is the result of her judgment and not that of an impartial tribunal. In our opinion, therefore, the observations to be found in the judgment of the Madras High Court on this question and the opinion expressed by Mr. Justice Mukerjee in the earlier cases as well as the decisions in Sant Kumar v. Deo Saran 8 A.P 365 : A.W.N. (1886) 129 and Jeram v. Veerbai 5 Bow. L.R. 885 must be regarded as having taken the sounder view on this question. There is no decision of the Judicial Committee which takes a different view. In our opinion the argument of Mr. K.V. Krishnaawsmy Iyer that, unless it is shown that a compromise has the elements of a valid alienation by a limited owner, it is not enforceable against the reversioners, should be accepted.
6. Having stated the law on the point, we shall examine the findings of the lower Appellate Court with reference to the above conclusion. In paragraph 16 the Subordinate Judge says: 'For the foregoing reasons I am of opinion that the compromise in Original Suit No. 229 of 1870 was entered into by Annapurni bona fide and in the best interests of her husband's estate.' No doubt if we were sitting as a first Appellate Court we might have come to the same conclusion. But the Subordinate Judge has drawn attention to circumstances which, in his opinion, justified him in arriving at the conclusion he has stated. One circumstance which has weighed with us also is the conduct of the father of the present plaintiff in failing to impeach the alienation which has been outstanding for over 50 years. He knew that there was an absolute conveyance to the alienee. The law gave him the right of contesting the alienation and of obtaining a declaration that it was not valid. He did not avail himself of that right; it is unreasonable, after such a long time, that the alienees should be compelled to prove affirmatively that the compromise was brought about honestly and without any fraud on their p Article We can not say that there is no evidence on which the opinion of the Subordinate Judge can be based. We must, therefore, assume that the Subordinate Judge has cast the burden upon the alienees and has come to the conclusion he has stated on an examination of the facts proved before him. We are bound to accept that finding. In the result the second appeal fails and is dismissed with costs.