Banerjee and Pargiter, JJ.
1. The suit out of which this appeal arises was brought by the plaintiff appellant, a minor represented by his mother and next friend, for obtaining' a declaration that the compromise decree in suit No. 35 of 1894 was not binding on the plaintiff, that the will of Ram Charan Singh, the plaintiff's great grandfather and the ekrarnamah of Sheoadhin, the plaintiffs grandfather are void and inoperative, and that Lachmi-Pershad, the grandfather's brother, was a trustee for the join-family composed of himself and his brother and their descendants; and for partition of the properties in dispute. The suit is brought against Lachmi Pershad and his male descendants as defendant first party, and Sheoadhin and his wife Parbati Kumari and his sons Balgobind Singh and Bacha Singh as defendants' second party. And the main allegations upon which it is based are that Ram Charan Singh, the great grandfather of the plaintiff who was a Hindu governed by the Benares School of Hindu Law, with the object of keeping the property which had been acquired by himself intact in perpetuity from generation to generation, executed a will or deed of settlement on 8th of November 1867, assigning some properties for the maintenance of his younger son Sheoadhin and declaring that the rest of his property shall be inalienably attached to his gaddi reasat, he being the first incumbent of the gaddi, and his eldest son Lachmi Pershad, and after him his eldest son and the eldest son of his eldest son and so on being his successors, who should hold the estate and provide the other members of his family with maintenance and wedding and funeral expenses; that Oil the 18th of July 1869 Ram Charan Singh's brother 'Chandi Pershad made a will in similar terms; that us April 1870 Ram Charan made over the possession of his property to Lachmi Pershad, who got his name registered in the Collectorate; that on the 13th of January 1871 Sheoadhin, in consideration of receiving some additional properties for his maintenance from Lachmi Pershad, executed an ekrarnama in his favour relinquishing all his claims to the property attached to the gaddi; that the descendants of Ram Charan notwithstanding these transactions continued to form a joint Hindu family with Lachmi Pershad as the head or managing member down to Rangoon 1296 F.S.; that the said will and ekrarnamahs which were executed in furtherance of the will are invalid and inoperative; that the defendants second party in, J.891 instituted a suit against the defendants first party for obtaining their shares of the joint property upon a declaration that the said will and ekramamahs were invalid and inoperative, that the suit was compromised and a decree made in accordance with the compromise, but as the present plaintiff was not represented by a proper next friend, and as the compromise was entered into by the defendants second party in ignorance of the real value of the properties in suit, neither the compromise nor the decree passed upon it can bind the plaintiff; and that the plaintiff accordingly brings this suit for the reliefs set out above.
2. The defence of the defendants first party who alone contested the suit was shortly this: that the suit was barred by limitation, that Ram Charan had in his lifetime effected a family settlement by which his sons Lachmi Pershad and Sheoadhin became separate, and Lachmi Pershad had all along been in sole possession of the properties in in dispute, and that the ekrarnamahs, the compromise and the decree in the previous suit were valid and binding on the plaintiff. Upon these pleadings several issues were frmed, and by consent of parties, issues Nos. 1, 2, 3, 6 and 7 which run as follows, namely, '(1) Has the plaintiff any valid cause of action? (2) Are the grounds set forth in the prayer No. 1 of the plaint for setting aside the decree and the compromise in suit No. 35 of 1894 true and valid, and sufficient in law to set them aside? (3) Is the said compromise decree liable to be set aside so fear as it affects or-purports for affect the plaintiff? If so, under what conditions if any? (6) Has the plain-tilt a right to maintain the suit when haw after and grandfather me both alive? (7) Has the plaintiff acquired by his, birth right to the properties in suit? If so, what is the nature and extent thereof; and whether he can enforce it by partition' were tried and disposed of first. Upon the result of such trial the suit has been dismissed by the Court below. Against that dismissal of the suit the plaintiff has preferred this appeal, and it is contended on his behalf, first, that the Court below is wrong in holding that the plaintiff did not by his birth acquire any interest in the properties in dispute and he had no cause of action in this suit; secondly, that the Court below is wrong in holding that the plaintiff had no right to maintain this, suit when his father and grandfather were both alive; thirdly that the Court bellow was wrong in holding that the compromise' and decree based thereupon are binding on the plaintiff when it ought to have held that they were not binding on him (a) by reason of his not being represented by a proper next friend, (b) by reason of the ignorance of the defendants second party, the plaintiff in that suit, as to the value of the property, and (c) by reason of the sanction of the Court having been obtained without placing all the proper materials before it. On the other hand it is argued for the respondents that not only is the Court below right in dismissing the suit on the grounds stated in its judgment, but that, the suit was liable to dismissal on the further ground that the right to set aside the ekrarnamas of Sheoadhin was barred by limitation and the reliefs claimed in this suit could not be granted until those ekrarnamahs were set aside. The contentions in the appeal therefore raise the following points for determination, namely, first, whether the plaintiff had by his birth acquired any interest in the properties in dispute such as would entitle him to maintain this sit; second, whether the plaintiff can maintain this suit when his father and grandfather are both alive; third, whether the suit is barred by limitation by reason of the right to set aside the ekrarnamahs of Sheoadhin being so barred; fourth, whether the compromise in the former suit and the decree based thereupon are invalid and not binding on the plaintiff by reason of the plaintiff not having been represented in the suit by a proper next friend; and, fifth, whether the said compromise and decree are invalid and not binding on the plaintiff by reason of the ignorance of the plaintiff's next friend as to the value of the property, and also by reason of the Court's sanction, to the compromise having been obtained without placing before it the proper materials. We should have observed that the third point, relating to limitation, arises fear determination in this appeal notwithstanding that, the issue of limitation, which was the fifth issue raised in the Court below, has mot been tried by that Court, because that was a general issue on the question of limitation, whereas the third point is only a particular issue of limitation which arises on the face of the ekrarnamahs and can be disposed off without going into other facts, as will appear when we come to deal with that point.
3. In dealing with the first point, it is necessary to state at the onset some of the undisputed or indisputable facts of the case. They are shortly these:
The properties in dispute were the self-acquired properties of the plaintiff's great-grandfather Ram Charan Sing and Ram Charan Singh's brother, Chandi Pershad Singh, and the properties purchased with the income of those properties. On the 8th of November 1867 Ram Charan, with the object of perpetuating the right to those properties; in his family, executed a will declaring that all his properties shall retain inalienably attached to his gaddi reasat and shall be impartible amongst this heirs, that he shall be the first occupant of the gaddi reasat, that after him his eldest son, Lachmi Pershad, and then Lachmi Pershad's eldest son, and so on according to the rule of primogeniture, should succeed to the gaddi reasat, that the testator shall have full authority to manage the estate unopposed by any one, and Lachmi Pershad shall have similar authority, that Ram Charan's younger son Sheoadhin shall have two mouzahs named in the will for his maintenance, and that the incumbent on the gaddi reasat for the time being Shall maintain the junior members of the family. Then on the 4th April 1870 Ram Charan and Lachmi Pershad put in applications in the Collector's Court, the latter applying for registration of his name as make of the properties covered by, the will in the place of that of Ram Charan, and the former assenting to, such application, Lachmi Pershad 'shme' was registered. Then on the 13th of January 1871 'Sheoadhin, having, received some additional properties for his maintenance from Lachmi Pershad executed an ekrarnamah surrendering and waiving all claim the moveable and immoveable properties, belonging to his father's estate, and subsequently Sheoadhin got his name registered, in respect of the properties obtained from his brother. On the 18th of July 1869 Chandi Pershad executed a will in favour of Lachmi Pershad bequeathing all his properties in favour pf Lachmi Pershad in connection with the gaddi reasat, and in October 1869 Chandi Pershad made over possession of his properties to Lachmi Pershad, whose name was registered in respect of the same. And Lachmi Pershad and Sheoadhin have continued to be in possession of the properties in respect of which they have had their names registered.
4. Upon these facts it is contended for the plaintiff-appellant that the wills of Ram Charan and Chandi Pershad did not convey any estate to Lachmi Pershad, but merely created trusts in favour of what was called the gaddi reasat, and of their family, Lachimi Pershad being appointed as the trustee; and the trusts being trusts for the accumulation of the income, and the order of succession prescribed being contrary to the general Hindu Law, the trusts are invalid according to the case of Shookmoy Chandra Das v. Monoharri Dassi (1885) I.L.R. 11 Calc. 684 : L.R. 12 I.A. 103, and there, arose therefore a resulting trust in favour of the settler's Ram Charan and Chandi Pershad; and after them the properties which were not validly disposed of, passed by inheritance to Lachmi Pershad and Sheoadhin and being ancestral properties of the latter, the plaintiff has acquired in the same a right by his birth. As to the ekrarnamah of Sheoadhin it is argued that it was executed while both Lachmi Pershad and Sheoadhin were under mistake as to their rights, both believing that the wills were valid, and so that document cannot be operative; and in support of this argument the case of Cooper v. Phibbs (1867) L.R. 2 H.L. 149 is cited. It is further argued that the ekrarnamah embodies a relinquishment of Sheoadhin's right not in favour of Lachmi Pershad individually, but in favour of him as the occupant of the gaddi reasat, or rather in favour of the gaddi reasat; and as for the petition of Ram Charan assenting to the registration of Lachmi Pershad's name as malik or proprietor, the terms used though comprehensive' must be taken to be controlled by the context, and the real meaning and intention should be held to have been to have his name registered as manager or trustee, and in support of this contention the case of Rabutty Dossee v. Sib Chunder Mullick (1854) 6 Moo. I.A. 1 is cited. We are unable to accept this contention as correct. In the first place we should consider the question of construction of the wills of Ram Charan and Chandi Pershad. It is clear from the will of Ram Charan that it was executed by him, to use his own words, 'for the purpose of perpetuating for ever the right' in his family, and he says in paragraph 1 of the will that his properties 'shall remain inalienably attached and subject to the gaddi reasat and shall be impartible amongst my hers on account of their shares;' and in paragraphs 3 and 4 he lays down the order, of succession to the gaddi reasat which is according to the rule of lineal primogeniture. What Ram Charan Singh intended therefore was to convert his properties into and inalienable and importable estate descendible according to the rule of primogeniture, his own younger son Sheoadhin being granted two mouzahs for his maintenance, and the junior members of his family in succeeding generations being required to be maintained by the incumbent on the gaddi for the time being. He says, moreover, ion paragraph 3 of the will that when Lachmi Pershad succeeds to the properties be shall have authority similar to his own, and in paragraph 2 he says, speaking of himself, that he shall remain installed on the gaddi during the term of his life with full Authority and will continue to manage and administer the estate unopposed by anyone. Having regard then to the object of the testator or settler, and having regard to the express terms of the will, can it be said that the will created merely a trust for the accumulation of the income, without intending to convey any estate to Lachmi Pershad? We are of opinion that the answer to take question must be in the negative.
5. Lachmi Pershad was to be the first the first in the series of the persons after the settler who should hood these properties sought to be made into an inalienable and imartible estate. The holder of such and estate is not a mere terustee for the familyu, but is a proprietor of the estate subject, of cause, to certain obligations maintain the junior members of the family, and his pore of enjoymmet is subject also to certain limitations and restrictions. The income is nowhere directed to be accumulated, though there are passages in the will in paragraphs 5 and 6, expressing a desire that and stating a reason why, there should be no necessity for running into debt, to the detriment of the estate. We think the document did convey an estate to Lachmi Pershad and an estate of inheritance, though the order of succession prescribed is different form that laid down by the ordinary Hindu Law, and though there is a restriction as to the power alienation. This case is clearly distinguishable from the case of Shookmay Chandra Das v. Monoharri Dassi (1885) I.L.R. 11 Calc. 684 : L.R. 12 I.A. 103 relied upon by the appellant. There was no disposal the property and there were directions for the accumulation of the income. Here notwithstanding the clause against alienation which must be inoperative as being repugnant to the character of the estate created, the bequest, which was converted into a gift inter vivos by the subsequent act of Ram Charan in making over possession to Lachmi Pershad, must be held to have been in the nature of family arrangement, by which his property was divided between his two sons, the younger son receiving a small portion for his maintenance and the elder obtaining the remainder to be held by him as an inalienable and impartible estate descendible according to the rule of primogeniture. Tike more fact of some of the restrictions and qualifications in the will being void, cannot affect the validity of the arrangement.
6. We are unable to laid that the will of Ram Charan merely created an invalid trust, and that there was a Resulting trust in favour of Ram Charan, and that on Ram Charan's death the property passed by inheritance to his two sons. The view we take as to the construction of this will is supported by the observations of the Privy Council in the cases of Rai Kishori Dasi v. Debendra Nath Sircar (1887) I.L.R. 15 Calc. 409 : L.R. 15 I.A. 37 and Lalit Mohun Singh Roy v. Chukkun Lal Roy (1897) I.L.R. 24 Calc. 834 : L.R. 24 I.A. 76; and some of the observations of their Lordships of the Judicial Committee in the case of Rai Bishenchand v. Asmaida Koer (1884) I.L.R. 6 All. 560 : L.R. 11 I.A. 164 may also be cited in support of the same view. Then as to the argument that as Lachmi Pershad and Sheoadhin had both been under a mistake as to the validity of will, when the provisions contained in it against alienation and in favour of the rule of primogeniture were clearly invalid, the ekrarnamah executed by Sheoadhin, under that mistake as this rights, should not bind him, we think the point has already been, to a certain extent met by what we have said above. Although, both Sheoadhin and Lachmi Pershad might have laboured under a mistake that two of the provisions in the will, namely, those relating to the question of alienation and the order of succession were valid when they were really not so, they could not affect the validity of the ekrarnamah, seeing that the will of Ram Charan did convey an estate to Loachmi pershad, and seeing that the properties being Ram Charan's self-acquired properties, he could deal with them in any was he like, and neither Sheoadhin nor Lachmi Pershad had any right in these properties by their birth. The ekrarnamah could not therefore be held to be in-operative. By that document Sheoadhin relinquished in favour of Lachmi Pershad all his right, if any, in the estate of his father. But in point of fact he had no right in them, and therefore, after all, the sacrifice he made by that document, was really nothing. This circumstance distinguishes the present case from those of Viravara Thodhramal Rajya Lakshmi Devi v. Viravara Thodhramal Surya Narayana Dhatrazu (1897) I.L.R. 20 Mad. 236 : L.R. 24 I.A. 118 and Cooper v. Phibbs (1867) L.R. 2 H.L. 149, 170 relied, upon in the argument for the appellant.
7. Then as regards the will of Chandi Pershad, that contains still more dearly the request of and estate to Lachmi Pershad. For in paragraph 5 of that document the testator expressly says: 'My motive for executing this will is that hereafter after the demise of me, the declarant, no contention with any one should arise in respect of the properties of me the declarant; and that any right thereto should not devolve on any body else besides Babu Lachmi Pershad Singh.'
8. This being our view of the two wills and the rights of the parties under those documents, the language used in Ram Charan's petition of assent to the registration of Lachmi Pershad's name as malik or proprietor should not be taken to be controlled in any way, there being nothing in the will to control the plain meaning of the words used. Now the properties in dispute having been the self acquired properties of Rarn Charan and Chandi Pershad, they were competent to dispose of them in any way they liked see Balwant Singh v. Rani Kishori (1897) I.L.R. 20 All. 267 : L.R. 25 I.A. 54 and they having disposed of those properties in the manner indicated above, according to the true construction of the wills, and Sheoadhur having in consideration of the additional properties received by him relinquished all his rights to the same in favour of Lachmi Pershad by his ekrarnamah before the birth, not only of the plaintiff, but of the plaintiff's father, it must be held that the plaintiff has acquired no right in them by his birth so as to entitle him to maintain this suit. The first point therefore must be decided against the* plaintiff.
9. Upon the second point we are inclined to think that as an abstract proposition of law our decision ought to be in favour of the view that a plaintiff can maintain a suit for partition of ancestral property even when his fatter and grandfather are both alive, if they allow the property to be wasted and the plaintiffs interest imperiled. This view is an accordance with that taken in the oases of Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148 : L.R. 6 I.A. 88; Subba Ayyar v. Ganasa Ayyar (1895) I.L.R. 18 Mad. 179 and Jogul Kishore v. Shib Sahai (1883) I.A.R. 5 All. 430 and with the opinion of Mr. Justice Telang who was in the minority in the case of Apaji Narhar Kulkarni v. Ram Chandra Ravji Kulkarni (1891) I.L.R. 16 Bom. 29. With all respect for the majority of the Judges in the case of Apaji Narhar Kulkarni v. Ram Chandra Ravji Kulkarni (1891) I.L.R. 16 Bom. 29 who are of a different opinion, we must say that the view we take is in accordance with the latter of the rule which has been laid down in the Mitakshara about the right of a son and grandson to ancestral property (see Mitakshara, Chapter I, Section 5, verse 3). But though that is our decision upon the abstract question of law, having regard to the concrete facts of this case we must decide the second point also against the plaintiff, for the simple reason that in our opinion he has acquired no right in the property in dispute.
10. Upon the third point the contention on behalf of the appellant is this that as the ekrarnamah was void ab initio by reason of the invalidity of the will of Ram Charan upon the assumption of the validity of which it was executed, it did not require to be set aside; and in support of this contention the case of Sham Lall Mitra v. Amarendro Nath Bose (1895) I.L.R. 23 Calc. 460 and certain other bases were cited.
11. We are of opinion that this contention is not sound.
12. The ekrarnamah, as we have said above, was not void ab initio. It was a valid relinquishment of the rights of Sheoadhin, and that being so and such relinquishments having been made long before the birth of the plaintiff, the plaintiff is bound by it and cannot obtain any relief such as is asked for in this case until the ekrarnahah is set aside. Now the time prescribed for setting aside the ekrarnamah has long passed and gone, the time being three years, and running from the date of its execution. The view we take is in accordance with that taken by this Court in the case of Raghubar Dyal Sahu v. Bhikya Lal Misser (1885) I.L.R. 12 Calc. 69 and the case of Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1900) I.L.R. 25 Bom. 337 : L.R. 27 I.A. 216 may also be referred to in support of the same view.
13. Upon the fourth point the contention on behalf of the appellant is this that Sheoadhin who represent the minor in the former suit was not a fit and proper person to represent him, first, because he had previously settled with the defendant's first party to come to a compromise, secondly because his position was already hampered by reason of his having executed the ekrarnamah, and, thirdly, because he was under the influence of Lachmi Pershad. It may be quite true that before the plaintiff was added as a party to the former suit, the arrangement for the compromise had proceeded a long way if it had not been altogether completed. But that does not prove that Sheoadhin was an unfit person to represent his minor son. For Sheoadhin evidently was acting not only in his own interest, but also in the interest of his branch of the family, that is, of all his descendants. The farmer suit was conducted by Sheoadhin and his son Balgobind. Either the one or the other was all along present when proposals for the compromise were made, and there is no reason for supposing that the minor's interests were disregarded. Then as to the fact of Sheoadhin having executed the ekrarnamah, if that circumstance hampers Sheoadhin it would have hampered every other person who might have been appointed the next friend of the minor, for the simple reason that the minor himself was bound by the ekrarnamah as we have said above. And as for Sheoadhin being under the influence of Lachmi Pershad, we do not think that the evidence sustains that allegation. On the contrary there is enough to shoe that sheoadhin was prosecuting his suit against Lachmi Pershad in a manner which indicates that he was not restrained in hi section in any way by the influence of the latter. One circumstances to which we may refer is this, that it was either Sheoadhin or Balgobind who was principally instrumental in pressing the prayer for the examination of Lachmi Pershad as a witness in the former suit.
14. The fourth point must therefore be determined against the appellant. We may here observe that the evidence abundantly proves that the former suit as well as the present one are being conducted by Sheoadhin and Balgobind, and that the plaintiff's another is only nominally has next friend in this suit, although the plaintiff's father Bacha Singh has had the hardihood to deny in his deposition all knowledge of how the plaint name to fee signed and verified by wife car who took it to her. That false denial of all knowledge on the part of Bacha Singh is a strong indication of the falsehood of the jest of the plaintiff's allegation that the former litigation, was conducted without due regard to his rights, and that in the present litigation his interests are being taken better care of by his mother as nest, friend. The truth is that the present suit is conducted in the interests of Sheoadhin's branch of the family just as much as the former suit was, and Sheoadhin and his son have been trying in this suit, by making use of the minor's name, to get rid of the compromise or as much of it as they possibly can.
15. It remains now to consider the fifth and the last point in this case. It is argued that though a family arrangement or. compromise should on general principles he upheld, yet where such a compromise is vitiated by reason of one of the parties having better knowledge of material facts than the other and of his having withheld such knowledge from his adversary, such a compromise should be set aside; and in support of this view the case of Gordon v. Gordon (1816) 3 Swanst 400, 473 is strongly relied upon. Reliance has also been placed upon the case of Bibee Solomon v. Abdool Azeez (1881) I.L.R. 6 Calc. 687 argued that in the former suit the defendants second party were not aware of the real value of the property, which was something like 30 lakhs, but they valued their suits at 5 lakhs of rupees; and that the materials necessary to enable the Court to exercise its judgment in determining whether the compromise was for the benefit of the minor had not been placed before the Court. We are unable to accept this contention as sound. Sheoadhin has not given his evidence in this case and though there is some evidence on the plaintiff's side that the defendants second party, the plaintiffs in the former suit, were not aware of the real value of the property, we do not think that that evidence should be preferred to the evidence on the other side which goes clearly to show that the defendants second party were aware of the real value of the property. Moreover, the defendants second party in the former suit had full means of knowing the true value of the property by referring to the Road Case papers filed in the Collectorate, or to the accounts Sled by Lachmi Pershad in the former suit. The facts, of this ease are very different from those of Gordon v. Gordon (1816) 3 Swanst, 400, 473 cited for the appellant and, also from the facts of the case of Bibee Solomon v. Abdool Azeez (1881) I.L.R. 6 Calc. 687. The present ease is governed by the general rule laid down in Stapilton v. Stapilton (1739) 1 White & Tud. 223 (7th Edn.), and nothing has been shown to make it an exception to the general rule. As has been pointed out above, by the compromise Sheoadhin and his branch of the family lost nothing, but evidently had their estate augmented by the not very inconsiderable sum of Rs. 90,000, and to give the plaintiff a decree in the present suit would result in the value of the joint property in which the plaintiff has interest being reduced by Rs. 90,000; for if the plaintiff's ease has to be decreed, it can only be on the condition of the sum of Rs. 90,000 received under the compromise being refunded.
16. For all these, reasons we think the decree appealed against is right and should be affirmed, and this appeal dismissed with costs.