1. This appeal is directed against the decision and decree of the Subordinate Judge, Second Court, Mymensingh, dated 25th June 1928, dismissing the plaintiffs' suit for declaration of their title to a one-sixth share in the properties mentioned in the two schedules of the plaint, and for recovery of possession of the same; as also for mesne profits as claimed in the suit.
2. The history of the litigation which has culminated in the present suit is of a complicated nature, and so far as the materials on the record go, the dispute between the parties concerned and their predecessors-in-interest, relates back to the year 1862. A genealogy which shows the relationship of the parties, as also the relevant dates on which some of the predecessors-in-title of the parties to the suit died is given below:
| | |
Chandra Kishore Raj Kishore Chandi Prosad
died 1259 B. S. (1852) died 1279 (1872) died 1256 B. S. (1849-50)
| widow Joytara widow Gourmani
| died 1297 (1890-91) died 1301 (1894)
| | |
Kalikanta Umakanta _________________________________________
died 1270 (Pous) died 1316 | | | |
(1863-64) (1909-10) Gangamani Nilmani Gunamani Nabadurga
widow Bijoya | died 1327 died 1281 (alive) died 1327
died 1326(1919-20) | (1921) (1874-75) Sreenath (1921)
| | Kotiswar Dinanath (dead) Dinanath
| | died 1310 died 1291 died 1291
| | (1903-04) (1884-85) (1884-85)
____________ | |
| | | ___________
Kamala Chandra | |
kanta kanta | _________________________
died 1273 died 1273| | | |
(1866) (1866) | Jogesh Rajendra Satindra
| | plaintiff 1, plaintiff 2. plaintiff 3.
defendant 6 |
| | | | | |
Ishan Prasanna Surendra Narendra Upendra Digindra
died 1328 (1921-22) defendant 1. defendant 2. defendant 3. Defendant 4 defendant 5.
| | |
Jogendra Atul Manoranjan
defendant 7. defendant 8. defendant 9.
3. Plaintiffs, three in number, are the sons of Kotiswar Khasnavis, who had married Gangamani, one of the daughters of Raj Kishore Majumdar, who as a member of a joint Hindu family, owned the property described in Schedule 1, along with his two brothers Chandra Kishore and Chandi Prosad, each of the three brothers owning an one-third share. Of the brothers, Chandi Prosad died intestate in 1256 B. S. (1849-50), leaving his widow Gourmani It is Chandi Prosad's share of the property which has been the bone of contention or the apple of discord between Raj Kishore's branch, now represented by the three plaintiffs, and the branch of the family of Chandra Kishore, now represented by the defendants, nine in number. There is no dispute as to the devolution of the shares in the property inherited from Raj Kishore and Chandra Kishore; and we have for the purpose of the present case to consider the devolution and disposition of the share of Chandi Prosad, which was inherited by his widow Gourmani after his demise.
4. The materials on the record, taken in their chronological sequence, show that in 1857, after the death of Chandi Prosad his widow Gourmani was in possession of the property covered by Schedule 1, along with Raj Kishore and Kali Kanta and Uma Kanta, the sons of Chandra Kishore who had died in the year 1852. Sometime after, on 10th February 1862, Gourmani settled her share of the property, of which she was in ijmali possession through her cosharers, Raj Kishore, Kali Kanta and Uma Kanta, in ijara, for twenty years with one Krishna Kishore Roy, by the terms of which settlement, she was to receive Rs. 50 year after year, the ijaradar having taken upon himself the burden of payment of Government revenue to the extent of Rs. 21-14-0 in respect of the property. It appears that there was an application made by the ijaradar Krishna Kishore Roy to the revenue authorities for a survey of the property covered by the ijara granted by Gourmani, under the provisions contained in Act 10 of 1859. This application was ultimately refused, and in the decision of the Officiating Collector on appeal, dated 11th June 1862, it was mentioned that Raj Kishore was in possession, that objection had been taken to Gourmani's right of granting the ijara patta, and that there was sufficient grounds for that. Until her title was proved in a civil Court, the order refusing assistance in holding the survey of lands could not be interfered with, and the appellant (the ijaradar) was not entitled to recover rents. Proceedings before the civil Court in the year 1863, indicate that Gourmani instituted a suit (No. 598 of 1863), as contemplated by the order of the Collector, to which reference has been made above, and that this suit was brought to a termination by a decree passed on compromise on 18th December 1863.
5. The suit which was in respect of the properties described in Schedule 1 of the plaint was filed on 28th April 1863, and on the very next day the property mentioned in Sch 2 of the plaint was purchased in the name of Raj Kishore. As the main controversy in the present litigation, so far as the property covered by Schedule 1 of the plaint is concerned, centres round the exact nature of the transaction between parties, as evidenced by the decree passed on compromise, and as the precise scope and effect of the same has to be determined in this appeal, the petition of compromise filed by Gourmani on the one hand, and the petition filed by Raj Kishore, Kali Kanta and Uma Kanta, on the other, in terms of which petitions 'the suit was
struck off, on being treated as having been disposed of in terms of the solenama of both parties,
and as both the parties to the suit were 'to abide by the terms of the solenama', it is necessary to refer to the terms and conditions embodied in the two petitions in some detail. In the petition of compromise filed in Court by Gourmani, on 18th December 1863, after a recital of the events leading up to the institution of the suit, it was stated as follows:
As I am a childless pardanashin woman, and as the management, etc. of the properties is not being carried on (well), and as the Majumdar defendants also are the reversioners, I, on receiving from the said Krishna Kishore Boy the malikana rent as stipulated in the ijara for the period from the data of the ijara up till this date, and on getting an Istafa (surrender) of the ijara, do make an amicable settlement with them (Majumdar defendants) in this manner, viz., that in lieu of the profits of the said properties, the said Majumdar defendants shall so long as I live, pay a Mashahara (allowance) for my maintenance, either to me or to my authorized mukhtear, on taking receipts, at the rate of Rs. '4 per month, i. e., Rs. 16 for the period from Pous to Chaitra of the current year shall be paid in the month of Chaitra of the current year, and in future, they shall, year after year, pay Rs. 48 per year, in four Kists, i.e., in Kist Assar of each year Rs. 12 in Kist Aswin Rs. 12 in Kist Pous Rs. 12 and in Kist Chait Rs. 12 If they, without making the payment, make default in paying the Kists, than they shall pay me the allowance with interest at the rate of 6 pies per rupee per month; and if, on their offering the same as per kists, I do not accept the same by granting receipts, then the Majumdar defendants shall have the right of depositing the same in Court. And I do make over to the Majumdar defendants the moveable properties on receiving from them a sum of Rs. 50 in. cash, as consideration for the same, and do renounce in their favour the entire immovable properties in claim together with my claims for mesne profits, declaration of title and recovery of possession, and whatever rights I have as well as my claim for the mesne profits from the date of the institution of the suit up till to-day; the Majumdar defendants shall possess and appropriate the same and shall remain in enjoyment thereof. In case the Majumdar defendants do not pay the said Mashahara due to me for four consecutive kists within the year, then the aforesaid terms shall cease to be in force, and my own right shall wholly revive in respect only of the said immovable proportion, and neither the Majumdar defendants nor their heirs shall have any objection to my possession and enjoyment of the same; and in that case, I shall not be entitled to put forward my claim to the Mashahara either against the Majumdar defendants or their heirs. Again, if I live in the Khanabari in claim, left by my husband, then the Majumdar defendants and their heirs shall give up the southern Bhiti within the inner apartments.
6. In the other petition of compromise, of Raj Kishore, Kali Kanta and Uma Kanta filed on 18th December 1863, the terms and conditions were similar to those contained in Gourmani's petition, of which it was a counter part, in the matter of a solenama or compromise, arrived at between the parties.
7. After the settlement arrived at between the three branches of the family, represented by Gourmani, Raj Kishore and Kali Kanta and Uma Kanta, in 1863, Raj Kishore died in Assar 1279 B. S. (1872), leaving a will dated 4th. November 1871. There was no executor appointed by the will of Raj Kishore, but Joytara his widow, and Dinanath the husband of Nilmoni, one of the daughters of Raj Kishore were the beneficiaries to the extent mentioned specificially in the will. Joytara and another parson, presumably Dinanath, proved the will of Raj Kishore, on 30th April 1875, in a proceeding before the Court, described as 'Probate Case.' It may be mentioned here that in the schedule of the properties which formed a part of will of Raj Kishore, it was recited that Gourmani had one-third share in the property mentioned in Schedule 1 of the plaint in the present case, and that she had relinquished the said share in favour of the absolute owner on agreeing to take a Mashahara (allowance) in cash, and that Raj Kishore was the owner in possession of a half of the one-third share inherited by Gourmani from her husband. It was further recited in the will, that an eight anna, share of Taluk No. 949 which includes the property of Schedule 1 of the plaint, was purchased in Raj Kishore's name, and was obtained by him by virtue of Gourmani's dealing with the same in the manner described above. The history of the properties mentioned in the two schedules of the plaint, and the manner in which they wore dealt with by the parties concerned, from 1873 to 1880, present an aspect of the case which has given rise to the litigation as it now stands, and events culminated in. a compromise decree passed on 31st March 1880, in a suit in which Gourmani was the plaintiff, and Joytara-widow of Raj Kishore, Bejoya widow of Kali Kanta (son of Chandra Kishore), Uma Kanta (Son of Chandra Kishore), Dina Nath (husband of Nilmani, a daughter of Raj Kishore), were the defendants. It would appear that in 1873, Joytara and Nilmani deposited moneys payable by them according to the terms of the Solenama filed in Suit No. 597 of 1863, on the representation that Gourmani had not accepted the amount of Mashahara (allowance) on account of her maintenance. The deposits so made were accepted by the Munsif, in whose Court it was made. On 19th September 1873, Gourmani granted a settlement, described as a Khudkast ijara of her share of the joint family properties to one Joy Chandra Bhattacharjya, for a period of 16 years.
8. In this document, evidencing the settlement, there was a recital that the Majumdars (Raj Kishore and others), did not pay, since 1278 B.S., the amount of malikanarna-shahara due to Gourmani according to the terms of the solenama of the year 1863, that there was a breach of the terms of the compromise, and that the right and title to the properties covered by the settlement had fully vested in her (Gourmani), again. The ijaradar, Joy Chandra, thereafter granted leases in respect of the property settled with him by Gourmani, to tenants, who executed kabuliyats in his favour, and ho paid the Government revenue in respect of the property settled with him, as also the malikana mashahara to Gourmani, according to the terms of the settlement. The share of the joint properties which devolved upon Joytara and Dinanath, under the will of Raj Kishore, seems to have boon settled with Krishna Chandra Majurodar, and the ijaradar (Krishna Chandra) exercised possession of the same, This state of things continued till the year 1877, when a suit No. 75 of 1877, was instituted on 19th April 1877 by Bijoya, the widow of Kali Kanta (one of the sons of Chandra Kishore) against Joytara, Dinanath, Nabadurga, Gangamani, Gunamani, representing Raj Kishore's branch of the joint family, as also against (Uma Kanta, the son of Chandra Kishore, for recovery of possession, by right of inheritance, of a 17 gaudas 3 karas 1 kranti share of the property described in Schedule 1 of the plaint. Joytara and Dinanath contested the suit, and an issue was raised in the suit to the following effect:
3. Whether Gourmani, the widow of Chandi Prosad relinquished her husband's one-third share in the properties in plots 1, 2 and 3, in favour of Raj Kishore, Uma Kanta defendant 6, and the plaintiff's husband Kali Kanta, in three equal shares, and whether the latter persons purchased the property in plot 4 in three equal shares, and whether they were in joint and ejmali possession thereof according to their respective shares, and whether the plaintiff being in possession of her husband's one-third share in the said properties has been ousted therefrom in Assar 1272 by the defendants.
9. It is to be noticed that Gourmani was not a party to the suit. The suit was eventually decided in favour of the plaintiff, Bijoya, and a decree was passed in her favour, on 19th March 1879. It requires mention that on 25th April 1877, Gourmani applied to have her name registered in regard to a 5 annas 6 gandas 2 karas 2 krantis share of the properties, under the provisions of the Land Registration Act on the representation that there was a breach of terms of the solenama of 1863, regarding payment of her mashahara (allowance), since 1278 B.S., and that she was the owner by granting ijara in 1280 B.S. Bejoya also applied on 30th April 1877 to have her name registered in respect of a share of the joint properties, on the footing that Gourmani had by the solenama, in 1863, parted with her entire rights in the same. It also appears that Joytara had also applied for registration of her name. Gourmani preferred objection to the applications for the registration of names as made by Bejoya on the one hand, and by Joytara on the other; and these two persons in their turn objected to Gourmani's name being registered. The decision of the land registration authorities went against Gourmani; and we find from the order passed by the Deputy Collector on 22nd November 1878, that Gourmani had not been able to substantiate her case,' and that she could not have a place in the revenue register of lauds.' The names of Joytara and Dinanath were registered. An appeal preferred by Gourmani, against the decision of the Collector, was dismissed on 3rd February 1879. Gourmani, in her appeal was pressing her case based on the solenama of 1863, and nonpayment of her allowance. The authenticity of two receipts evidencing payment of allowance to her, was expressly questioned in the grounds of appeal. Gourmani, after the decision in the land registration proceedings, instituted a suit in the civil Court, Suit No. 56 of 1879, in which Joytara, Bejoya, Uma Kanta, Dinanath, as also the ijaradars in possession under the different cosharers, were made defendants. The suit was disposed of in accordance with a petition of compromise filed on 31st March 1880. The recitals contained in the petition, and the terms of compromise are set out below;
It is submitted that the mashaharadue to me for the year 1278 B.S. not having been paid to me, I on the strength of the solenarna of li70 B.S. took fresh possession of the properties left by my husband. Thereafter defendants 1, 2, 3, i, and 5 having dispossessed me from some properties by virtue of the order in the mutation case, I have instituted this suit, and the defendants have contested this on the plea that the amount of mashahara for the year 1278 B.S has been paid up to me etc. The onus of proving the said matter is on the defendants. As they will not be able to prove the same and as both the parties will have to incur enormous costs and undergo much hardship in fighting out the case up to the Hon'ble High Court, it has been proposed that the case should be amicably settled and the said defendants having agreed to give up the properties in claim in my favour, provided I renounce my claim for costs and mesne profits, and the terms of amicable settlement having been settled, the aforesaid defendants have given up the properties in claim, in my favour, and I have renounced my claim for costs and mesne profits. Neither myself nor my ijaradar, defendant 6, shall be entitled to claim mesne profits and miad munafa (profits for the period) etc., against the aforesaid defendants. The defendants shall bear their own costs and 1 shall give my ijaradar, defendant 6, satisfaction (for the profits) for the period of dispossession, and keeping intact the ijara previously granted by me, I shall restore him into possession. The defendants will not be responsible for that. Defendants 1 and 4 shall be entitled to withdraw the money which previously defendant 1 and the wife of defendant 4 Nilmani Debya, and afterwards defendants 1 and 4 deposited in the Munsif's Court of Chouki Nikli for the alleged Mashahara due to me. I shall not be entitled to put forward any objection thereto. The defendants too have filed a separate petition on these allegations. It is therefore prayed that the parties may be ordered to bear their own respective costs, and a decree may be passed, and delivery of possession may be given in my favour in respect of the properties in suit. Finis, dated 15th Chait 128 B. S.
10. A decree for possession in favour of Gourmani followed in terms of the petition of compromise; and it would appear that possession was exercised by the different parties in respect of their shares of the properties, as evidenced by kabuliyats executed in their favour from time to time. Rent decrees were obtained by parties in respect of their shares, and in these decrees, the several parties interested in the properties, were represented. We have materials before us showing this state of things up till the year 1904. In the year 1896, after Gourmani's death in 1894, Umakanta Majumdar's name was substituted in her place in the D. Register. Uma Kanta died in 1316 B. S. (1909-1910); and the suit, out of which this appeal has arisen, was instituted by the plaintiffs on the footing that they were entitled to recover possession, upon declaration of their title in respect of a 2 annas 13 gandas 1 kara 1 krant share of the property mentioned in Schedule 1 of the plaint, taken as 16 annas, obtained by inheritance for Chandi Prasad, and left by Raj Kishore, as also in respect of a 3 annas 1 kara 1 krant share out of the 10 gandas share in the property mentioned in Schedule 2, left by Raj Kishore.
11. According to the plaintiffs, Gourmani relinquished her widow's estate in favour of Raj Kishore, the next reversionary heir of her husband, Chandi Prasad, in the year 1863. Gourmani, it was alleged by the plaintiffs, then left her husband's house, and went to live in her father's place; that Raj Kishore gave Uma Kanta and Kali Kanta half of Chandi Prasad's estate of which he obtained possession by virtue of the relinquishment, and. retained the remaining half-share to himself. The question of relinquishment or surrender by Gourmani is a question dependent upon the interpretation to be put upon the petition of compromise filed by Gourmani on 19th December 1863, the material portions of which document have been set out in this judgment. The scope and effect of the transaction, as evidenced by the document, the legal position brought about by the same, as between the parties concerned, require consideration; and will be dealt with in its proper place. It appears to us however that the case sought to be made by the plaintiffs that Gourmani had no connexion with her husband's properties after 1863, and that she had no possession of the same, has not been proved by the materials on the record, either documentary or oral. Nor are we satisfied, on the evidence 'before us, that the terms and conditions in regard to payment of allowances to Gourmani were carried out, as contemplated by the solenama of 1863. This is with reference to property described in Schedule 1 of the plaint. In regard to the property mentioned in Schedule 2, the plaintiffs case was that it was acquired by Raj Kishore and his nephews, Uma Kanta and Kali Kanta, with their funds after the death of Chandi Prasad and Chandra Kishore. In this property, the plaintiffs said, Chandi Prasad had no interest: half of it belonged to Raj Kishore and the other half to Uma Kanta and Kali Kanta. This part of the plaintiffs' case in regard to the property mentioned in Schedule 2, is in our judgment, entirely negatived by the definite recital contained in Raj Kishore's will, dated 4th November 1871 and it is impossible for us to hold on the evidence before us, that the property mentioned in Schedule 2 of the plaint did not belong to the joint family, and that Gourmani had no right, title or interest in the same. The properties covered by the two schedules mentioned in the plaint stand on the same footing as joint family properties, and it was for the plaintiffs to make out as they alleged in their plaint, that they got by inheritance the share they have claimed in the suit.
12. The plaintiffs have not succeeded in proving the case they set up with reference to the property described in Schedule 2 of the plaint. The plaintiffs wanted to make out that Uma Kanta, with the object of claiming the entire share of Chandi Prasad, as reversionary heir after Gourmani's death caused Gourmani to apply for the registration of her name under the provision of the Land Registration Act; that Uma Kanta, after the dismissal of the application for registration of name, caused a false suit to be instituted by Gourmani against Joytara, Dinanath and others for recovery of possession, that the decree passed on 31st March 1880 in this suit was a fraudulent and collusive one, that Uma Kanta brought about the compromise, by gaining over Dina Nath without the knowledge of Joytara. It was further alleged by the plaintiffs that the compromise of 1880 was not binding on them. Upon the materials before us, it may be doubtful if Joytara and Dina Nath were, under the law, competent to bind the estate of Raj Kishore, by their dealings with the same, as evidenced by the compromise of 1880, but the questions of fact raised by the plaintiffs that Gourmani's name was being used by Uma Kanta in proceedings before the revenue anthorities, in the matter of registration of her name under the Land Registration Act, that the suit in the name of Gourmani was not her suit but UmaKanta's, that the compromise of the suit was brought about by Uma Kanta, who procured the support of Dina Nath and that it was brought about without the knowledge of Joytara must, on the evidence before us, be decided against the plaintiffs. We agree with the learned Subordinate Judge in this conclusion on evidence bearing upon this part of the case, and we hold that it his not been established that there was any collusion between Uma Kanta and Dina Nath and that the compromise decree passed in 1880 was fraudulent or collusive. No attempt was ever made before to challenge the decree on compromise, which settled the rights of parties in the year 1880 and it has been challenged by the plaintiffs for the first time in 1925, after the parties concerned have acted upon the same for a long series of years.
13. As indicated already, the vital question involved in the case is the question of interpretation of the petitions of compromise filed by the parties in Suit No. 597 of 1863, and upon which a decree in terms of the petitions was passed by the Court, on 19th December 1863. The question is whether there was any relinquishment or a surrender by Gourmani or her widow's estate in favour of the reversioner Raj Kishore. The plaintiffs' pleader at one stage of the case before the trial Court, appears to have made a statement that the relinquishment, as alleged by the plaintiffs in the suit made by Gourmani in favour of Raj Kishore, was oral and not documentary and that it was subsequently followed by a solenama in a suit. Some importance was attached in the trial Court and in this Court also on the side of the defendants, to this statement made by the plaintiffs' pleader in the trial Court but it appears to us that in view of the events that happened in the matter of filing documents in Court, and in connexion with the inspection of documents by the plaintiffs after they had been filed, too much weight should not be attached to what has been described as a change of the plaintiffs' case. There can be no doubt that all matters relating to the case arising out of the pleadings and the issues raised or attempted to be raised and evidence, both documentary and oral, bearing upon them, were placed before the Court by both the parties and there is therefore no substance in the position sought to be taken up that there has been a real change of the plaintiffs' case or that there was any variation as between the pleadings and proof so far as the plaintiffs were concerned. Nor are we in a position to hold that the plaintiffs have suffered by the trial Court's rejection of the prayer for adding an issue on 5th May 1928 before the hearing of the suit commenced. The question raised by issue 5:
Did Gourmani surrender her entire interest in the entire estate in favour of Raj Kishore?
and the question attempted to be raised by addition of an issue, namely:
was there any arrangement between Gourmani on one side and Raj Kishore, Uma Kanta and Kali Kanta on the other side, in respect of Schedule 1 property, as alleged by the defendants in their written statement; if so, what was its effect upon the parties and the successors-in-interest ?
lead us to the consideration of the rights of parties created by the solenama in the year 1863. The plaintiffs have failed to substantiate the case of a verbal surrender, and if plaintiff 1 is to be held fast to the statement made in his deposition as a witness in his cause, before the Court, that he did not claim the surrender on the basis of the compromise in 1863, there is hardly anything for plaintiff 1 to stand upon. We are however not inclined to come to a decision in the case without recording our decision on the question whether the solenama of 1863 did operate as a surrender of relinquishment of Gourmani's estate to the then reversioner, Raj Kishore. If there was a surrender or relinquishment of the widow's estate, the plaintiffs are entitled to succeed in the present suit, but not otherwise. The subsequent compromise of 1880 gave effect to the earlier arrangement of 1863, and in our judgment, the later compromise would stand or fall with the earlier one. Coming now to the crucial point in this case, it is well established that the doctrine of surrender foreshadowed by a text in the Dayabhaga Ch. 11, Section 1, para. 51, has now evolved by a series of decisions of Courts in this country, and those of the Judicial Committee of the Privy Council. The widow can at any time relinquish her estate, this having the effect of accelerating the estate of the next heir. The rule, as has repeatedly been held, originated with the idea of a retirement from the world, or extinction of desire for property, which is tantamount to civil death, and leads to extinction of rights in property, so far as a Hindu widow is concerned. As has been laid down by Courts of the highest authority, a Hindu widow may surrender or withdraw her life estate and destroy her own rights so as to accelerate the succession, and vest the estate inherited from her husband, in the then next heir, in the same way as if she were dead at the time of the surrender or relinquishment, in favour of the reversioner. As observed by Lord Morris, in delivering the judgment of their Lordships of the Judicial Committee of the Privy Council, in the case of Behari Lal v. Madho Lal  19 Cal. 236:
it may be accepted that according to the Hindu law, the widow can accelerate the estate to the heir, by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate, so that the whole estate should got vested at once in the grantee.
14. The wish on the part of the widow must not be to leave the management in the hands of the reversioner for the time being, but it must be a surrender of her life estate. We have given our best attention to the terms of the petitions of compromise filed in Court, on 19th December 1863, and on a very careful consideration of the material terms of the documents which have been set out in a previous part of this judgment, we have come to the conclusion that it could not be said, on the plain meaning of the words used in the documents, that the transaction evidenced by the solenama of 1863, constituted a surrender or relinquishment of a widow's estate, by Gourmani.
15. There was no complete surrender or relinquishment of her estate; her connexion with the estate inherited by her from her husband was fully retained by her leaving the management of the estate in the hands of the then reversioner, and by providing for due and punctual payment of the allowance fixed by the terms of compromise, the allowance representing the profits out of the estate. In our judgment, the terms of the solenama in 1863, which represented a transaction which was to remain in force during the lifetime of Gourmani, merely replaced in a different form, the terms of the ijara granted by Gourmani to Krishna Kishore Soy, for a period of 20 years in the year 1862. Furthermore, the presence of the terms and conditions upon which the property was to revert to the widow, excludes altogether the idea of acceleration of the widow's estate and vesting of the same in the then reversioner. We agree with the trial Court in holding that the clause relating to resumption is repugnant to the idea of complete surrender. In our judgment, there was no surrender or relinquishmeric by Gourmani of her widow's estate in 1863; and we are definitely of opinion, upon the materials before us, that there was default on the part of Raj Kishore in the payment of allowance to Gourmani in 1278 B. S., and the result of the default was forfeiture of the rights created in Raj Kishore, by the solenama in 1863, during Gourmani's lifetime. The case of surrender or relinquishment as alleged by the plaintiffs in the suit, has completely failed; the defendants have on the other hand made out a case of forfeiture by Raj Kishore or his successors-in-interest. The materials on the record support the case of the defandants as to nonpayment of allowances by Raj Kishore, and it was for the plaintiffs, who rested this title on the state of facts that there was regular payment of these allowances, and that there was no default, were bound to make out their case. This they have failed to do.
16. In addition to the case of a surrender by Gourmani, the plaintiffs took up the position that the transaction evidenced by the compromise decree of 1863, was a family arrangement, and was as such binding upon the defendants. The fact however remains that the transaction did not amount to anything more than an arrangement for realization of rents and profits on behalf of Gourmani, and payment of a fixed amount representing the profits out of the property. This arrangement, which was made for the lifetime of Gourmani, came to an end during her lifetime, by the operation of the forfeiture clause in the petition of compromise. As a family arrangement or a family settlement, the solenama of 1863 had not, and could not possibly have, any operation. We are also unable to hold that there was any bona fide dispute regarding Gourmani's title to the property. Gourmani was in possession at the time of the institution of the suit through her ijaradar; only the possession of the ijaradar was not apparently recognized by the revenue authorities, perhaps at the-instance of some cosharers of the joint family properties, who could not on any account be said to have been in adverse possession in respect of Gourmani's share and much less could they have acquired any title to the same, at the date of the institution of the suit. It is well settled that a family arrangement to be valid and operative must be one concluded with the object of settling a bona fide dispute arising out of conflicting claims to property, which was either existing at the time, or was likely to arise in future. Bona fides is the essence of its validity, and from this it followed that there must be either a dispute or at least an apprehension of a dispute, a situation of contest which is avoided by a policy of giving and taking, or else all transfers or surrenders will pass under a cloak of a family arrangement : see the judgment of Sashi Kant Acharjee v. Pramode Chandra Roy A.I.R. l982 Cal. 600
17. The solenama of 1863 could not, in the above view of the case, be treated as a family arrangement, operating in favour of the plaintiffs, and supporting the title as alleged by them in this case. The transaction did not, as already noticed, operate as a surrender or relinquishment by Gourmani of her estate, and could not support the plaintiffs' claim as made in this case, in regard to properties described in Schedule 1 of the plaint. The plaintiffs have not also substantiated their claim as made in this, suit with reference to the property mentioned in Schedule 2. In view of our conclusions recorded above, it is not necessary to enter into a detailed consideration of the transaction as embodied in the compromise decree of 1880. That decree on compromise was not a collusive or fraudulent decree, nor was it brought about by Uma Kanta as asserted by the plaintiffs in this suit. The compromise in 1860 was effected by the parties concerned, in order to give effect to the real state of things, regard being had to the doubts and complications raised by the proceedings for registration of names, and the decisions of the civil Court in Bejoya's suit in the years 1877 and 1878. It may be added in this connexion that there is a great deal to be said in favour of the position taken up by the appellants before us, that Joytara and Dina Nath were only life tenants under the will of Raj Kishore, and could, not, as such, bind the plaintiffs by their acts, in the matter of the compromise effected in 1880. We are also inclined to be of the opinion that neither Joytara nor Dina Nath purported to act as executors under the will of Raj Kishore and represented the estate as such, when the compromise was effected in the year 1880. The inclination of our opinion in favour of the appellants' contention in this behalf, does not however affect the real question in the case, and we hold, as we have held above, that Gourmani had not at any time whatsoever surrendered her entire interest in favour of Raj Kishore, and that the interest of Gourmani in her husband's share of the property in question came back to her, by reason of the forfeiture incurred by Raj Kishore, by nonpayment of allowances as stipulated by the solenama of 1863.
18. A question was raised by the appellants before us as to the effect of the decision in Bejoya's suit : Suit No. 75 of 1877, on the rights of parties to the present litigation. It was urged that there was estoppel by res judicata against Uma Kanta who was a party defendant in that suit, and that the defendants, claiming through Uma Kanta, were bound by that estoppel. It is to be noticed that Gourmani was not a party to that litigation. For the purpose of defeating Bejoya's claim in regard to a greater share in the joint family property, it was not necessary for Uma Kanta to plead that the surrender by Gourmani was a total or complete relinquishment of her widow's estate. We cannot upon the materials before us accept the position that Uma Kanta was fighting Gourmani's cause in that litigation, or that there was any collusion between the two, and we hold that the omission of Uma Kanta to raise a plea that could be raised by Gourmani in Bejoya's suit, could, in any way, estop the defendants, the heirs of Uma Kanta, from raising that plea now. The defendants raised that plea, and upon the materials on the record, that plea has to be given effect to, so as to negative the claim put forward by the plaintiffs in this suit. On the whole therefore on a review of the materials on the record, and upon a careful consideration of the questions involved in this appeal, the decision arrived at by the learned Subordinate Judge in the trial Court, dismissing the plaintiffs' suit, appears to us to be correct, and we affirm the same. In the result the appeal is dismissed with costs.
19. I agree.