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Upendra Nath Bose Vs. Bindeshri Prosad - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.468
AppellantUpendra Nath Bose
RespondentBindeshri Prosad
Cases ReferredAbdul Saheb Gandigiwad v. Mallikarjunqppa Shivamurteya
Excerpt:
appeal - letters patent, clause 15--'judgment', meaning of--concurrent findings of fact, effect of hindu law--alienation--limited owner--widow--family settlement, validity of--consent of expectant reversioners, effect of--mere attestation of deed, effect of--compromise--deed, construction of--decree, admissibility of. - lawrence jenkins, c.j.1. jaikaran lal, a hindu governed by the mitakshara school of law, died in 1865, leaving him surviving his widow musammat jasoda koer and his daughter musammat lochan koer. musammat lochan koer was married to deonath sahai, and the plaintiff bindeshri prosad is the sole surviving male issue of the marriage.2. bindeshri instituted this suit on the 14th april 1909 against upendra nath bose and others and he seeks a declaration that he is the sole reversionary heir of jaikaran lal and on the death of his grandmother musammat jasoda koer and musammat, lochan koer he became entitled to the present possession of the entire estate, left by his maternal grandfather. he seeks the further declaration that the mokurari lease granted by musammat lochan koer to uma shankar prosad.....
Judgment:

Lawrence Jenkins, C.J.

1. Jaikaran Lal, a Hindu governed by the Mitakshara School of Law, died in 1865, leaving him surviving his widow Musammat Jasoda Koer and his daughter Musammat Lochan Koer. Musammat Lochan Koer was married to Deonath Sahai, and the plaintiff Bindeshri Prosad is the sole surviving male issue of the marriage.

2. Bindeshri instituted this suit on the 14th April 1909 against Upendra Nath Bose and others and he seeks a declaration that he is the sole reversionary heir of Jaikaran Lal and on the death of his grandmother Musammat Jasoda Koer and Musammat, Lochan Koer he became entitled to the present possession of the entire estate, left by his maternal grandfather. He seeks the further declaration that the mokurari lease granted by Musammat Lochan Koer to Uma Shankar Prosad under patta and kabuliat dated the 20th August 1893, in respect of 8-annas share in Mauzas Pertappore, Chergerwa, Rokshi and Gajhanda appertaining to Mahal Kother, Touzi No. 3142, District Gaya, is not binding on the inheritance of the plaintiff and is null and void and inoperative as against him. Finally he prays for possession and mesne profits.

3. The suit No. 100 of 1909 was heard by the second Subordinate Judge of Gaya together with suits of a similar nature and the procedure adopted by the learned Judge has occasioned a certain amount of confusion as to the evidence. But happily we have been freed from this by the mode in which the appeal has been presented by the learned Vakils who have conducted the case before us, for they have limited themselves in their respective arguments to the materials to be found in the paper-books of this appeal, so I need make no further reference to this aspect of the case. The Subordinate Judge decided in the plaintiff's favour.

4. Upendra Nath Bose preferred an appeal to the High Court and this was heard by Stephen and Mullick, JJ. They differed in opinion and so the appeal of the Subordinate Judge was confirmed. From this judgment of confirmation this present appeal to the High Court under Clause 15 of the Letters Patent has been preferred. It was contended at the outset for the respondent that though the learned Judges, Stephen and Mullick, JJ., differed in opinion as to the disposal of the case, there were isolated points in the case on which they were agreed. As to these it was argued there was no appeal. But this rests on a misconception of the scope of Clause 15 of the Letters Patent. The appeal sanctioned is not from any point, but from the judgment and the meaning of the word 'judgment' lends no support to the respondent's contention. The Letters Patent were framed in England and from the scheme and the language of the Letters Patent, as also from the Secretary of State's accompanying despatch, it is apparent that the word is used in the sense of 'a sentence of the law pronounced by Court' and not of the reasons which have led to that pronouncement. What was said in Nundeeput Mahta v. Urquhart 13 W.R. 209 lends support to the respondent's contention, but I cannot find that it has ever been followed and Sir Richards Couch's view in Maharanee Heeranath Kooer v. Baboo Burm Narain Singh 17 W.R. 316 at p. 335 is hardly in accord with it. In my opinion we must be guided by the words of Clause 15 and they do not support the respondent's contention. At the same time, I think that we ought to have regard to the rule, which their Lordships of the Privy Council ordinarily observe, of declining to interfere with concurrent findings of fact by two Courts.

5. I will now proceed to deal with the appeal on the merits. The patta and kabuliat, of the 20th August 1893, which the plaintiff impugns have a history which has to be understood before the true relations of the parties can be understood and it goes back to the death of Jaikaran Lal in 1865. I have said he left a widow and daughter, he also was survived by a nephew, Gouri Baijnath, his deceased brother's son,

6. The position of the family will be apparent from the following tabular statement:

Mahadev Dutt

___________|____________

| |

Dyanat Ray. 1st wife Musammat Toro--

| Jikaran Lal,

Gouri Baijnath Persad. 2nd wife Musammat

| Jasoda Koer,

|

Uma Shankar Persad, Deonath Sahai--

Musammat Lochan Koer

Bindeshri, plaintiff.

7. After Jaikaran Lal's death two applications were made for a certificate under Act XXVII of 1860 to collect debts due to his estate.

8. One was preferred by Musammat Jasoda Koer, who claimed to be his heiress on the ground that he was separate in estate. The other was preferred by Gouri Baijnath on the allegation that he and his uncle were joint. In the Court of 1st instance Gouri Baijnath succeeded. On appeal this order was reversed and the certificate was granted to the widow, Musammat Jasoda Koer. The judgment of the High Court, which was pronounced on the 4th August 1866, is reported as Musammat Josoda Koonwur v. Gourie Byjonath Sohae Singh 6 W.R. 139. This was not conclusive of the rights of the parties and so on the 10th of September 1866 Gouri commenced a suit against the widow to establish his right as the surviving member of a joint family.

9. A review too, was sought of the High Court's decision. An amicable settlement, however, was proposed which, after securing considerable benefits to Musammat Jasoda during her life, provided that properties representing one-third of the entire immoveable property claimed by Musammat Jasoda and her daughter should be given by Gouri Baijnath to the daughter to be taken possession of by her after the death of Musammat Jasoda, the encumbrances created in the life-time of Jaikaran Lal being paid off by Gouri Baijnath, that after the death of Musammat Jasoda Gouri Baijnath should be entitled to take possession of all the immoveable properties except those given to Lochan and that all pending cases were to be withdrawn. Musammat Lochan Koer was added as a party to the suit, petitions of compromise were filed, and the suit was decided in accordance with this family arrangement. On the 26th December 1873 Musammat Jasoda Koer died. According to the allegations made in the plaint in suit No. 193 of 1894 Gouri Baijnath took possession of the properties except those which were to go to Musammat Lochan and on the 27th December 1878 he made a gift of them to his son Uma Shankar, the plaintiff in suit No. 193 of 1894. Again on Musammat Jasoda's death there was a contest as to the grant of a succession certificate. The decision was in Musammat Lochan's favour and this was upheld by the High Court on the 15th May 1874.

10. Gouri Baijnath died on the 9th of August 1883.

11. In 1893 suit No. 62 of 1893 was instituted by Uma Shankar against Musammat Lochan for a certain family tenement and it was his case that he was ready to institute another suit for the establishment of his title to, and recovery of, possession of the properties claimed by Musammat Lochan as the estate of Jaikaran Lal. But there was a compromise on the 2nd August 1893 between Uma Shankar on the one side and Musammat Lochan Koer and Bindeshri, the present plaintiff, on the other. The terms were that suit No. 62 of 1893 was to be withdrawn and the contemplated suit abandoned, and that Musammat Lochan Koer should grant Uma Shankar a permanent mokurari of 8 annas of Mauza Pertappore and other properties specified on a rental of Be. 1 over and above the Government Revenue and Road and Public Works Cess. There were other terms which need not now be specified. On the 20th August 1893 the mokurari patta was executed by Musammat Lochan Koer and attested by Bindeshri. Uma Shankar, however, on the allegation that the compromise had not been carried out commenced suit No. 193 of 1894 against Musammat Lochan Koer and Bindeshri Prosad for the recovery of the properties claimed by Musammat Lochan Koer as the estate of Jaikaran Lal. The claim was resisted and Bindeshri in his written statement, paragraph 41, contended that the plaintiff had no right to bring the suit contrary to the compromise in the mokurari patta and kabuliat in respect of 8 annas of Mauza Pertappore, that the said compromise could not be set aside by the Court and that whatever rights the plaintiff Uma Shankar had under two earlier instruments became extinct and extinguished by virtue of the compromise.

12. This suit was compromised on the 18th February 1895. Evidently Musammat Lochan was determined that this compromise must finally end this family litigation and so a petition was presented by Uma Shankar in which he admitted all the infirmities of his claim and stated that he bad proposed and the defendants had accepted as a compromise that the mokurari, dated 20th August 1893, of 8, annas of Mauza Pertappore, etc., should stand good. He accordingly prayed for the dismissal of the suit on those terms, Petitions were also presented by Musammat Lochan Koer and Bindeshri. In conformity with these petitions the suit was dismissed in the terms of the compromise on the 10th February 1895. There is, in my opinion, no foundation for the contention that this decree is inadmissible for want of registration. The compromise does not purport to convey release or otherwise deal with immoveable property.

13. On May 5th, 1903, Musammat Lochan, Koer died. On the 14th May 1909 the present suit was instituted against several defendants of whom Upendra Nath Bose alone has contested the plaintiff's claim; before us. He is a purchaser of the property.

14. The following issues were framed by; the Trial Judge:

1. Is the mokurari lease, dated 20th, August 1893, executed by Lochan in favour of Uma Shankar binding upon the plaintiff? Was it executed for any legal necessity?

2. Is the plaintiff estopped from, claiming sir possession of the properties in suit?

3. Was the plaintiff minor at the time the mokurari lease was executed and the, petition of compromise, dated the 10th February, filed in suit No. 193 of 1894 in the Court of the District Judge Gaya?

4. To what amount of mesne profits, if any, is the plaintiff entitled?

5. Are the auction sale, dated 21st November 1901, at which the defendants Nos. 1 and 2 purchased the property in suit and the dar-mokurari lease, dated 2nd December 1908, granted by defendants Nos. 1 and 2 to defendants Nos, 3 and 4, binding on the plaintiff?

6. Is the suit barred by limitation?

15. On the question of minority, the Subordinate Judge and both the Judges of the Division Bench are against the' plaintiff and I think this concurrent finding of fact should not be disturbed.. I will, therefore, deal with the case on the footing that the plaintiff was a major at the two dates indicated.

16. The position then, is this that the mokurari lease was executed by Musammat Lochan and attested by Bindeshri who was then a major, while Deonath Sahai, presumably Bindeshri's father, also had a hand in the affair for it was at his request that one of the witnesses attested Musammat Lochan's execution of the document. I agree with the Judges of the Division Bench that the mokurari lease on its true construction purports to be perpetual and descendible. Why then should it not be binding on Bindeshri? The form of the issues suggests that this must be answered by reference to the doctrine of legal necessity, and this idea is prominent in the judgments both of the Subordinate Judge and of the Judges of the Division Bench. But in the circumstances of this case, this is not the test to be applied. Musammat Lochan, it is true, had only a daughter's interest, and so her power of disposition was limited by the law regulating such dispositions. The doctrine of legal necessity would appear to be bat a particular phase of that law, and the more universal test is, whether the purpose for which the alienation is made is proper in the circumstances of the case. There is, I think, sanction for this view to be found in the leading case of Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 at p. 551; 2 W.R. 61 (P.C.); 1 Suth, P.C.J. 476; 1 Sar, P.C.J. 820; 19 E.R. 631, where it was said of a Hindu widow that for religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity. On the other hand, it may be taken as established that an alienation by her which would not otherwise be legitimate, may become so if made with the consent of her husband's kindred. But it surely is not the necessary or logical consequence of this latter proposition that in the absence of collateral heirs to the husband, or on their failure, the fetter on the widow's power of alienation altogether drops. The exception in favour of alienation with consent may be due to a presumption of law that where (that consent is given the purpose for which the alienation is made must be proper.' Similar citations might be multiplied, but it will suffice to quote the words of Lord Moulton, who in delivering the opinion of the Privy Council said, it has always been a feature of Hindu Law as administered by this Board to attach great weight to the sanction by expectant reversioners of an alienation as affording evidence that the alienation was under circumstances which rendered it lawful and valid:' Bijoy Gopal Mukerji v. Girindra Nath Mukerji 23 Ind. Cas. 162; 41 C. 793 at p. 805; 18 C.W.N. 673; 12 A.L.J. 711; 19 C.L.J. 620; 16 Bom. L.R. 425; 16 M.L.T. 68, 27 M.L.J., 123; I.L.W. 533 (1914) M.W.N. 430 (P.C.). If Bindeshri consented, we have the consent of an expectant reversioner who has actually succeeded to the property on the determination of the particular interest.

17. There is, therefore, every reason for applying this test of the propriety of the transaction. But then the question if, Did Bindeshri consent? He certainly attested the mokurari of the 20th August 1893, but this would not conclusively establish his consent, for it can be shown that his signature was there for some other purpose than that of giving consent. Bindeshri has given evidence in the case. In examination-in-chief the case he made was minority and that has not been believed. His cross-examination does not throw any further light on the point. The Subordinate Judge held that the attestation did not prove consent to alienation. Mullick, J., was of opinion that any presumption of consent that might arise from the attestation had been rebutted. He does not, however, explain how it was rebutted, unless he means to rely on the view he expresses that the suit No. 68 of 1893, was not a bona fide suit.

18. Stephen, J., also held that attestation did not validate the transaction because it was not necessarily the same as consent and the presumption of consent, was rebutted by Uma Shankar's bad faith. But the attestation does not stand alone. It is followed, first, by Bindeshri's resistance to Uma Shankar's claim in suit No. 193 of 1894 on the grounds set forth in paragraph 41 of Bindeshri's written statement, in which he insists on the compromise referred to in the mokurari patta and kabuliat as an, answer to the claim and avers that Uma Shankar's rights became extinct and extinguished by virtue of that compromise. Nor do matters rest there, for Bindeshri is party not only to the suit No. 193 of 1894 but also to the compromise in that suit which affirmed the mokurari patta. All this should, in my opinion, be accepted as establishing that the lease was legitimate, and certainly one that it would be wrong to declare invalid at the instance of the present petitioners. For even if there be a doubt as to the fact or efficacy of the consent as evidenced by the attestation, there can be no question as to the subsequent consent, and 'Omnis ratihabitio retro-trahitur et mandato priori oquiparatur' [Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.L.; 17 M.L.J. 605; 9 Bom. L.R. 1348; 12 C.W.N. 74; 6 C.L.J. 766; 35 I.A. 1 (P.C.); 3 M.L.T. 1; 5A.L.J.1.] Much has been said about the lack of good faith in the earlier suits, but I am not sure that I fully understand what was meant. It surely can hardly be said that the suit of the 10th of September 1866 was brought in bad faith merely because in the certificate proceedings Gouri Baijnath had failed, and especially when it is borne in mind that the Court of first instance was in Gouri's favour and that the High Court decision was in some measure based on admissions made only for the purpose of those proceedings. The compromise of that gave a fresh starting point. It may or may not have been open to successful attack, but having regard to the circumstances it was one to which the principle enunciated in Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477; 38 I.A. 87; 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; 33 A. 356 (to cite one case out of many) was applicable, and I fail to see how it can give rise to any inference that the suit was not brought in good faith. Moreover, there is always a danger of referring a knowledge of principles now known to a time anterior to their establishment, and though Appovier v. Rama Subba Aiyan 11 M.I.A. 75; 8 W.R. 1 (P.C.); 1 Suth. P.C.J. 657; 2 Sar. P.C.J. 218; 20 E.R. 30 has made obvious to us that there can be a partition of interest without a division by metes and bounds, this had not been conclusively determined on the 11th of September 1866. So it is quite possible that when the suit of 1866 was commenced, the petitioner may have thought not only that the facts but also the law was on his side inasmuch as there had been at that time no division by metes and bounds. Is there then any reason for thinking that there was a lack of good faith in Uma Shankar's suit No. 62 of'1893 and his expressed determination to sue for recovery of properties claimed by Musammat Lochan Koer as the estate of Jaikaran Lal? In approaching this question it must be borne in mind that Uma Shankar could rest his claim on the compromise which terminated the litigation of 1866, and that was a compromise in support of which, as I have already said, it was possible to invoke the principle applied in Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477; 38 I.A. 87; 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; 33 A. 356.

19. It is true that the mokurari of the 28th of August 1893, in which suit No. 62 of 1893 terminated, contains expressions depreciatory of Uma Shankar's claim, but they must not be taken too seriously. This form of exaggeration is not an unfamiliar conveyancing device in the mofussil: it takes the place of a release and is balanced by the benefit secured. It is the price of the benefit. And what is true of the contents of this mokurari patta is as true of the still more depreciatory confessions which preface or accompany the compromise in the suit No. 193 of 189. It is as much a part of the mofussil conveyancer's art as the beaver hat or pipe of wine wag of the special pleader in times gone by, and perhaps hardly deserves to be taken more seriously as a statement of actual fact. It is intended to furnish a useful controversial weapon of defence for the future rather than to be a correct description of any one's mind apart from the transaction in which it is found.

20. I, therefore, hold on a consideration of all the circumstances that Bindeshri is not entitled to impugn tie mokurari patta and that it is binding on him. It follows that in my opinion the appeal should be allowed and the suit dismissed with costs throughout.

Asutosh Mookerjee, J.

21. This is an appeal by the second defendant, in a suit commenced by the plaintiff-respondent for recovery of possession of land, on declaration that an alienation by way of permanent lease, made by his mother on the 20th August 1893, is not binding upon the estate in his hands as the representative of his maternal grandfather. The suit was decreed by the Trial Court. Upon appeal to this Court, Stephen, J., was of opinion that the decree of the Subordinate Judge should be reversed and the suit dismissed. Mullick, J., was of opinion, on the other hand, that the decree of the primary Court be affirmed. Consequently, that decree was confirmed under Sub-section 2 of Section 98 of the Civil Procedure Code, 1908. The second defendant who has thus been defeated in both the Courts below has preferred this appeal under Clause 15 of the Letters Patent. A preliminary point has been raised as to the scope of the question open for examination in the present appeal. The respondent has argued, on the strength of a dictum of Norman, C.J., in Nundeeput Mahta v. Urquhart 13 W.R. 209, that under Clause 15 of the Letters Patent, an appeal lies only in respect of that part of the judgment upon which the two Judges differ and that where both the Judges composing the Division Bench agree in their finding on a certain point, the Court of Appeal has no power to question that finding. Norman, C.J., attributes this view to Peacock, C.J., and refers to the decision in Hazara Begum v. Khaja Hossein Ali 12 W.R. 498. The judgment of Peacock, C.J., however, does not lend any support to the conclusion of Norman, C.J.; Peacock C.J., merely ruled that where the contention before a Division Bench has reference to a single point only, whereon the Judges differ, it is not open to the parties in an appeal under Clause 15 of the Letters Patent to raise before the Appellate Court other points not raised before the Division Bench. We have, on the other hand, the opinion of Couch, C.J., clearly indicated in Maharanee Heeranath Kooer v. Burm Narain Singh 17 W.R. 316 at p. 335, that the point on which the Judges of the Division Bench have agreed is open for consideration in the appeal under the Letters Patent, though it was added that on a question of fact we think we ought to be guided by the rule of the Privy Council where there have been the decisions of two Courts to the same effect.' Indeed, it is reasonably clear from the terms of Clause 15 of the Letters Patent, that the appeal is allowed, not against what is called judgment under the Code of Civil Procedure, but, against what corresponds to a decree or an order. That clause allows an appeal from the judgment not being a sentence or order passed or made in any criminal trial. The term judgment' here means not the statement given by the Judge of the grounds of his decree or order, but the sentence of the law pronounced by the Court upon the matter contained in the record (Co. Litt. 39a, 168a; 3 Blackstone's Commentaries, 395). A judgment, then, is the decision or sentence of the law given by a Court of Justice as the result of proceedings instituted therein for the redress of an injury or, as has been quaintly expressed, judgment is the determination and result of law. This is clear from paragraph 23 of the Despatch from Sir Charles Wood which accompanied the first Letters Patent. The appeal must, consequently, be deemed to have been preferred against the decree and all the points necessary to be investigated for the determination of the question of the correctness of that decree are open for consideration, although the Court as a Court of Appeal would be slow to take, upon a question of fact, a view contrary to the concurrent opinion of the trial Judge and of the two Judges of the Division Bench.

22. The following genealogical table will serve to elucidate the relative situation of the parties in the different stages of this protracted controversy between them.

Mahadeo.

______________|_________________

| |

Jaikaran. Dayanath,

Died 15th Dec. 1865, |

Widow Jasoda Koer |

Died 26th Deo. 1873, |

| Gouri Baijnath

Lochan Koer Died 9th Aug. 1883,

Died 5th May 1906, |

Married Deonath Sahay |

Died 2nd May 1906, |

| Uma Shankar

Bindeshri Prosad, Plaintiff Born 8th Aug. 1870.

Assignor of Defendant.

23. The property now in dispute admittedly belonged to Jaikaran; on his death, it passed to his widow Jasoda Koer, and, on the death of the latter, it devolved on Lochan Koer. On the 20th August 1893, Lochan Koer granted a permanent lease of the property to Uma Shankar. The deed was witnessed by her son Bindeshri Prosad and also by a Pleader, Babu Suryya Kumar, who attested at the request of her husband Babu Deonath Sahai. Lochan Koer died on the 5th May 1906, and on the 14th May 1909 Bindeshri Prosad instituted the present suit for recovery of possession of the villages upon declaration that the lease was not binding upon the estate of his maternal grandfather, which, upon the death of his mother, had devolved upon him as reversionary heir. The second defendant, who had purchased the lease-hold interest in execution of a mortgage decree against Uma Shankar, resisted the claim on the ground that the lease was for a lawful purpose, that its propriety was unquestionable though made by a Hindu female heir with a qualified power of alienation, and that it was operative against the inheritance in the hands of the reversionary heir. For the determination of the question thus raised, the circumstances antecedent to the grant of the lease must be carefully scrutinised, and for this purpose, the narrative of events requires to be carried back to the point of time when Jaikaran died on the 15th December 1865.

24. Immediately on the death of Jaikaran, disputes broke out in the family, as to whether Jaikaran had died joint with or separate from Deonath. Jasoda Koer, the widow of the deceased, and Gouri Baijnath, his nephew, applied on the 8th and 9th January 1866, respectively, for a certificate under Act XXVII of 1860 for the collection of debts due to the deceased. On the 7th April 1866, the District Judge of Gaya dismissed the application of the widow and granted a certificate to the nephew, who also obtained an order for possession in his favour under Act XIX of ] 841. The widow appealed to this Court, and on the 4th August 1866 obtained a reversal of the order of the District Judge adverse to her. The elaborate judgment of this Court pronounced on that occasion [Musammat Josoda Koonwur v. Gourie Byjonath Sohae Singh 6 W.R. 139] affords convincing proof that there was a substantial matter in controversy between the parties. This need not cause any surprise, if we remember that what constitutes partition of joint properties held by an undivided Mitakahara family was at that time a matter of doubt and uncertainty, which was settled by the now classical judgment of Lord Westbury in Appovier v. Rama Subba Aiyan 11 M.I.A. 75; 8 W.R. 1 (P.C.); 1 Suth. P.C.J. 657; 2 Sar. P.C.J. 218; 20 E.R. 30 pronounced on the 1.7th November 1866, and, by still later decisions of the Judicial Committee in Rajah Suraneni Vankata Gopala Narasimha Row Bahadoor v. Rajah Suraneni Lakshma Venkama Row 13 M.I.A. 113; 3 B.L.R. 41 12 W.R. 40 (P.C.); 2 Suth. P.C.J. 265; 2 Sar. P.C.J. 496; 20 E.R. 494; Doorga Pershad v. Kundun Koowar 1 I.A. 55; 13 B.L.R. 235; 21 W.R. 214; Ram Pershad Singh v. Lakhpati 30 I.A. 1; 30 C. 231; 7 C.W.N. 162; 5 Bom. L.R. 103 (P.C.); Balkishen Das v. Ram Narain Sahu 30 I.A. 139; 30 C. 738; 7 C.W.N. 578; 5 Bom. L.R. 461 (P.C.) and Parbati v. Naunihal Singh 3 Ind. Cas. 195; 36 I.A. 71; 31 A. 412; 6 A.L.J. 597; 5 M.L.T. 427; 13 C.W.N. 983; 10 C.L.J. 121 (P.C.); 11 Bom. L.R. 878; 19 M.L.J. 517. The nephew thus defeated could hardly be expected to remain satisfied with the result of the preliminary skirmish, and, as might have been anticipated, instituted a regular suit against Jasoda Koer for recovery of possession of the estate of Jaikaran on the 10th September 1866 on the allegation of title by-survivorship. What might thus have proved a protracted litigation, ruinous to the family, was brought to a speedy termination by the intervention of friends, relatives and legal advisers of the parties. Terms of settlement were arranged, and in order that they might be operative after the death of Jasoda Koer, Lochan Koer was added as a party defendant to the suit, and it was indeed her father-in-law Raghubar Dayal who took a prominent part in the settlement of the dispute. It is not necessary for our present purpose to set out in detail the terms of the settlement or to examine how far they were reasonable. Their general effect was that Jasoda Koer would get possession of all the moveable and immoveable properties, while Gouri Baijnath was to receive an annuity of Rs. 4,000 a year. Immoveable properties which yielded a net profit of Rs. 10,000 a year and represented one-third of the estate, were to vest absolutely in Lochan Koer, free of encumbrances, but subject to the life-interest of Jasoda Koer; the remainder of the estate would devolve upon Gouri Baijnath upon the death of Jasoda Koer. On the 11th December 1866, mutual deeds were executed with a view to give effect to this family arrangement, and petitions of compromise were presented to the Court; a decree by consent of parties was ultimately made on the 25th March 1867. There are indications on the record that the terms of this compromise were carried out by both the parties at least for some years. But on the death of Jasoda Koer on the 26th December 1873, disputes broke out again between the two branches of the family, and on the 5th January 1874 Lochan Koer applied for a certificate under Act XXVII of 1860 for the collection of debts of the estate of her father. The application was opposed by Gouri Baijnath, but was granted on the 12th February 1874 by the District Judge, and his order was confirmed on appeal to this Court on the 15th May 1874; Gouree Byjnath v. Lochan Koer 22 W.R. 102. The result was that Lochan Koer retained possession of the estate of her father contrary to the terms of the family settlement of 1867. Gouri Baijnath, who is said by his son to have thereafter led a life of depravity and extravagance, died on the 9th August 1883, leaving as his sole her an infant son, Uma Shankar, at that time a boy of thirteen years. In 1893 Uma Shankar, after attainment of his majority, instituted a suit against Lochan Koer for recovery of a house which had been sold in execution of a decree against his father and had been purchased by her in the name of one Mir Enayet Hossain. Uma Shankar also threatened at the same time to institute another suit against Lochan Koer for recovery of the estate of Jaikaran on the basis of the family settlement of 1867. Proposals for compromise were set on foot; and it was during the pendency of the suit for recovery of the house that Lochan Koer, on the 20th August 1893, granted to Uma Shankar the perpetual lease now in controversy, and the lease and its counterpart state explicitly that as a consideration for the grant of the lease, the lessee undertook to withdraw the suit already instituted and to refrain from the' institution of groundless suits. On the 13th November 1893, Uma Shankar withdrew from the suit for recovery of the house, which was accordingly dismissed. The compromise, however, was of very brief duration, for on the 6th August 1894 Uma Shankar instituted a suit against Lochan Koer and her son Bindeshri Prosad for recovery of possession of the estate of Jaikaran. Lochan Koer and Bindeshri Prosad filed separate written statements on the 9th and 10th September 1894 in which they repudiated the settlement of 1867, and relied on the perpetual lease as a complete extinction of the prior rights of Uma Shankar. This suit also was amicably settled, and on the 18th February 1895, it was dismissed in the terms of the petition of compromise filed by Uma Shankar, Lochan Koer and Bindeshri Prosad. Uma Shankar relinquished all his claims to the estate of Jaikarah, and Bindeshri declared that he neither had nor would ever put forth, directly or indirectly, any claim to the properties included in the, perpetual lease granted by his mother to Uma Shankar. This assurance proved as illusory as similar promises by other members of the family on previous occasions. Lochan Koer died on the 5th May 1906, and Bindeshari Prosad on the 14th May 1909 instituted the present suit for declaration that the perpetual lease was not operative after the death of his mother and did not bind the estate of his maternal grandfather which had devolved upon him as reversionary heir. From the fact's narrated, it would appear at first sight that no claim could be more hopeless than an endeavour by a person to challenge a deed, created in settlement of a family dispute, attested by the claimant at the time of execution and solemnly affirmed by him subsequently in a Court of Justice. The Trial Court, however, held that the plaintiff was entitled to succeed, as the deed, executed as it was by a Hindu daughter in possession of the estate of her father, could be supported only on proof of legal necessity. That decree has been affirmed by this Court. The Judges of the Division Bench were agreed that there was no legal necessity for the lease, but they differed upon the question, whether the act of the plaintiff in the suit of 1894 disentitled him to all relief. Upon the best consideration, I have been able to give to the case, I have been driven to the conclusion that the course this litigation has taken has resulted in a failure of justice and that the relative rights of the parties have not been examined from the true standpoint.

25. The test in cases of this description, where a deed by a limited owner with qualified powers of alienation is called in question, is whether the purpose for which the alienation was made was proper or legitimate. This is clear from the judgment of Turner, L.J., in Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A. 529 at p. 551; 2 W.R. 61 (P.C.); 1 Suth, P.C.J. 476; 1 Sar, P.C.J. 820; 19 E.R. 631: 'It is admitted on all hands that if there be collateral heirs of the husband, the widow cannot of her own will alien the property, except for special purposes. For religious or charitable purposes, or those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity. On the other hand, it may be taken as established that an alienation by her, which would not otherwise be legitimate, may become so, if made with the consent of her husband's kindred. But it surely is not the necessary or logical consequence of this latter proposition that in the absence of collateral heirs to the husband or on their failure, the fetter on the widow's power of alienation altogether drops. The exception in favour of alienation with consent may be due to a presumption of law that where that consent is given, the purpose for which the alienation is made must be proper.' Whether the particular purpose is proper or not must depend on the circumstances of the case; but it is plain that necessity is only one of the tests of propriety. This is clear from the observation of Sir James Colvile in Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 M.I.A. 209; 12 W.R. 47 (P.C.); 3 B.L.R. 57; 2 Suth. P.C.J. 275; 2 Sar. P.C.J. 518; 20 E.B. 529 that the concurrence of the members of the family suffices to raise a presumption that the transaction was a fair one and one justified by Hindu Law, of Lord Davey in Sham Sundar Lal v. Achhan Kunwar 26 I.A. 183; 21 A. 71; 2 C.W.N. 729; 7 Sar. P.C.J. 417 that the concurrence of the kindred raises a presumption that the transaction was a fair one or one justified by Hindu Law, and of Lord Moulton in Bijoy Gopal Mukerji v. Girindra Nath Mukerjee 23 Ind. Cas. 162; 41 C. 793 at p. 805; 18 C.W.N. 673; 12 A.L.J. 711; 19 C.L.J. 620; 16 Bom. L.R. 425; 16 M.L.T. 68, 27 M.L.J., 123; I.L.W. 533 (1914) M.W.N. 430 (P.C.) that the sanction by expectant reversioners of an alienation of property by a Hindu woman affords evidence that the alienation was made under circumstances which rendered it lawful and valid. The same result would be attained, if the expression 'legal necessity' had not had impressed upon it a narrow sense and had not become generally associated with cases where there is actual pressure on the estate or danger thereto to be averted. Tested in the light of the broad principle that the validity of the transaction impeached depends upon the answer to the question, whether it was proper, fair and justified by Hindu Law, what is the position of the parties here? The lease was granted in settlement of a long-standing feud which had harassed the members of the family for more than one generation and seemed at the time ready to be revived on every possible occasion. It is unquestionable that the litigations of 1866 and 1867 had their origin in substantial disputes between the two branches of the family and it is equally undeniable that the settlement of 1867 was perfectly bona fide. In 1873, on the death of Jasoda Koer, the dispute was revived, and the former settlement, which had been accepted by Lochan Koer, was repudiated by her. Her cousin, Gouri Baijnath, had consequently, prima facie, a good ground of complaint against her, and it is not a matter for surprise that his son Uma Shankar should, in 1893, have endeavoured to assert his rights under the settlement of 1867. Can it then be reasonably maintained that a perpetual lease, granted to secure a compromise of such a dispute, lacks that element of fairness and propriety, which is essential for its justification as an operative act by a limited owner under the Hindu Law? A desperate attempt has been made by the plaintiff to establish that no substantial dispute existed between the two branches of the family at any stage, that the claim of Gouri Baijnath and his son was wholly unfounded and that there was no real controversy either in 1867 or in 1893 which stood in need of settlement for the benefit and protection of the estate of Jaikaran. In support of this view, reference has been made to recitals by Uma Shankar, that he had no shadow of a claim to the estate of Jaikaran. No real weight, in my opinion, should be attached to statements of this description. We may usefully call to mind the familiar words of Knight Bruce, L.J., in Hunoomanpersaud Panday v. Babooee Munraj Koonweree 6 M.I.A. 393; 18 W. 11. 81n; Sevestre 253n; 2 Suth. P.C.J. 29; 1 Sar. P.C.J. 552; 19 E.R. 147, that 'the deeds and contracts of the people of this country must be liberally construed; the form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses. To the same effect is the observation of Lord Macnaghten in Achal Ram v. Kazim Husain Khan 32 I.A. 113; 27 A. 271; 9 C.W.N. 477; 15 M.L.J. 197 (P.C.); 8 O.C. 155, where the draftsman had introduced in the recitals an obviously untrue statement, probably under the notion that it might impart some additional solemnity to the instrument. These exhibitions of the art of the conveyancer, whether medieval or modern, cannot be permitted to mislead the Court. If Lochan Koer and her advisers had taken seriously the allegation that Uma Shankar had not the vestige of a claim to the estate of her father, it is inconceivable that she should have parted with' a valuable property in his favour. We know, from the antecedent history of the family, that there had been serious disputes between the parties and whatever recitals might have been inserted in the deeds, whatever price Uma Shankar might have paid in the way of untrue conciliatory admissions, with a view to secure the compromise, the fact is incontrovertible that there was a substantial dispute between the parties which was settled by the grant of the lease. A settlement of a disputed or doubtful claim, effected in this manner, is clearly a valid and binding arrangement which the parties thereto are not permitted to deny, ignore or resile from, on principles explained by the Judicial Committee in a long series of cases: Rajender Narain Rae v. Bijai Govind Singh 2 M.I.A. 18, at p. 249; 1 Moo. P.C. 117; 1 Sar P.C.J. 175; 12 E.R. 757; 18 E.R. 269; Maharajah Hetnarain Singh v. Baboo Modnarain Singh 7 M.I.A. 311; 3 W.R. 51 (P.C.); 1 Suth. P.C.J. 355; I Sar. P.C.J. 678; 19 E.R. 326; Sri Gajapathi Radhika Patta Maha Devi Garu v. Sri Gajapathi Nilamani Patta Maha Devi Garu 13 M.I.A. 497 at p. 512; 6 B.L.R. 202; 14 W.R. 33 (P.C.); 2 Suth. P.C.J. 365; 2 Sar. P.C.J. 601; 20 E.R. 637; Mantappa Nadgowda v. Baswuntrao Nadgowda 14 M.I.A. 24 at p. 36; 15 W.R. 33 (P.C.); 2 Suth. P.C.J. 407; 2 Sar. P.C.J. 648; 20 E.R. 695; Greender Chunder Ghose v. Troyluckho Nath Ghose 21 I.A. 35; 20 C. 373; Muhammad Imam Ali Khan v. Husain Khan 25 I.A. 161; 26 C. 81; 2 C.W.N. 737. As Lord Kingsdown said in Trigge v. Lavallee (1882) 15 Moo. P.C. 270 at p. 292; 1 N.R. 454; 9 Jur. (N. S.) 261; 8 L.T. 154; 11 W.R. 404; 137 R.R. 61, a compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases, the consideration which each party receives is the settlement of the dispute; the real consideration is, not the sacrifice of a right, but the abandonment of a claim. To the same effect is the statement of Turner, L.J., in Lucy's case (1853) 4 De G.M. & G. 356; 22 L.J. Ch. 732; 17 Jur. 1143; 43 E.R. 545; 102 R.R. 163, that it is sufficient if the parties bona fide consider that there is a question to be decided between them, for otherwise no compromise will be good if it ultimately turned out that there was no doubt upon the point which was made the subject of compromise: Callisher v. Bischoffsheim (1870) 5 Q.B. 449; 39 L.J.Q.B. 181; 18 W.R. 1127 approved in Miles v. Newzealand Alford Estate Co. (1886) 32 Ch. D. 266; 55 L.J. Ch. 801; 54 L.T. 582; 34 W.R. 669; Helan Dasi v. Durga Das Mundal 4 C.L.J. 313; Birbhadra Rath v. Kalapataru Panda 1 C.L.J. 388 at p. 405 and Satya Kumar Banerji v. Satya Kirpal Banerji 3 Ind. Cas. 247; 10 C.L.J. 503. It may further be pointed out, as explained in Williams v. Williams (1867) 2 Ch. App. 294; 36 L.J. Ch. 419; 16 L.T. 42; 15 W.R. 657, that a family arrangement may be upheld, although there are no rights actually in dispute at the time of making it, and the Courts would not be disposed to scan with much nicety the quantum of consideration; this principle is applicable not merely to cases where arrangements are made between the members of a family for the preservation of its peace, but also to cases where arrangements are made between them for the preservation of its property: Persse v. Persse (1840) 7 C1 and Fin. 279; 4 Jur. 358; West. 110; 7 E.R. 1073; 51 R.R. 22. We are not now concerned with the question, when and how a family arrangement may be set aside on the ground of mistake, inequality of position, undue influence, coercion, fraud or other similar ground, for no such vitiating factor is alleged or proved in this case. Consequently, the decision in Gordon v. Gordon (1821) 3 Swans. 400; 19 R.R. 230; 36 E.R. 910 and other cases of the same class [Lawton v. Campion (1854) 18 Beav. 87; 23 L.J. Ch. 505; 18 Jur. 88; 2 W.R. 209; 52 E.R. 35; 23 L.T. (o.s.) 201; 104 R.R. 378; Bentley v. Mackay (1862) 31 Beav. 143 54 E.R. 1092; 135 E.R. 135, affirmed on app. 4 De G.F. & J. 279; 10 W.R. 873; 45 E.R. 19; Moxon v. Payne (1873) 8 Ch. App. 881; 43 L.J. Ch. 240; Fane v. Fane (1875) 20 Eq. 698, on which much stress was laid by the respondents, have no application. There is no room for doubt that, to use the language of Lord Westbury in Dixon v. Evans (1872) 5 H.L. 606 at p. 618; 20 L.J. Ch. 139, there was here an honest settlement of an existing dispute, which, if not manifestly ultra tires of the parties, is one that a Court of Justice ought to respect and ought not to permit to be questioned. The question thus arises, whether the validity of the family settlement is affected by the circumstance that the grantor of the lease was a limited owner in possession with qualified powers of alienation. The answer must be in the negative in view of the decision of the Judicial Committee in Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477; 38 I.A. 87; 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; 33 A. 356, There, a Hindu became a convert to Islam. His son, who was a Hindu, predeceased him. On his death, there was litigation as to the succession between his son's daughters and his daughter's son. The parties compromised the dispute and took the estate in certain shares. The daughter's son then attacked the compromise in a suit; it was ruled that the compromise was in the nature of a family settlement and was operative. As Lord Moulton said in Hiran Bibi v. Sohan Bibi 24 Ind. Cas. 309; 18 C.W.N. 929; 27 M.L.J. 149; 1 L.W. 648 (P.C.) a compromise of this character is, in no sense of the word, an alienation by a limited owner of the family property, but is a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties. [Tarinee Churn Gangooly v. Watson & Co. 12 W.R. 413; 3 B.L.R.A.C. 437; Mohendra Nath; Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954; 2 C.L.J. 157; 19 C.W.N. 1280; Gur Nanak Prashad v. Jai Narain Lal 14 Ind. Cas. 814; 34 A. 385; 9 A.L.J. 375; Bihari Lal v. Baud Husain 18 Ind. Cas. 721; 35 A. 240; 11 A.L.J. 352; Subbammal v. Avudaiyammal 30 M. 3; Bhogaraju Venkatarama Jagiraju v. Adapalli Seshayya 12 Ind. Cas. 123; 19 M.L.T. 179; 85 M. 560.] The view cannot be defended on principle that a qualified owner, like a Hindu widow, daughter or mother, is bound at her peril to pursue a litigation in respect of the estate in her hands unremittingly to the ultimate Court of Appeal, and that she cannot bona fide effect a settlement of the matter in controversy, even though such compromise be in the best interests of the estate. There is thus no room for reasonable doubt that the permanent lease granted by Lochan Koer was binding upon the inheritance.

26. We are fortified in this view by the significant circumstance that it met with the approval of the then next reversioner, who was no other than the present plaintiff. Reference may in this connection be made to the observations of Turner, L.J., in Collector of Masulipatam v. Cavaly Vencata Narainapah 8 M.I.A. 529 at p. 551; 2 W.R. 61 (P.C.); 1 Suth, P.C.J. 476; 1 Sar, P.C.J. 820; 19 E.R. 631, of Sir James Colvile in Raj Lukhee Debea v. Gokool Chunder Chowdhry 13 M.I.A. 209; 12 W.R. 47 (P.C.); 3 B.L.R. 57; 2 Suth. P.C.J. 275; 2 Sar. P.C.J. 518; 20 E.B. 529 and of Lord Davey in Sham Sundar Lal v. Achhan Kunwar 26 I.A. 183; 21 A. 71; 2 C.W.N. 729; 7 Sar. P.C.J. 417, which will all be found quoted in the judgment of the Full Bench in Debt Prosad Chowdhury v. Golap Bhagat 19 Ind. Cas. 273; 17 C.W.N. 701; 40 C. 721; 17 C.L.J. 499, to show that the concurrence of the reversioner raises a presumption that the alienation is made for a proper purpose. [See also the observation of Lord Moulton in Bijoy Gopal Mukerji v. Girindra Nath Mukerjee 23 Ind. Cas. 162; 41 C. 793 at p. 805; 18 C.W.N. 673; 12 A.L.J. 711; 19 C.L.J. 620; 16 Bom. L.R. 425; 16 M.L.T. 68, 27 M.L.J., 123; I.L.W. 533 (1914) M.W.N. 430 (P.C.) and of Sir Andrew Scoble in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A.L.; 17 M.L.J. 605; 9 Bom. L.R. 1348; 12 C.W.N. 74; 6 C.L.J. 766; 35 I.A. 1 (P.C.); 3 M.L.T. 1; 5 A.L.J. 1.] Reliance need not be placed on the circumstance that the plaintiff attested the document, for as pointed out by the Judicial Committee in Raj Lukhee Dahea v. Gokool Chunder Chowdhry 13 M.I.A. 209; 12 W.R. 47 (P.C.); 3 B.L.R. 57; 2 Suth. P.C.J. 275; 2 Sar. P.C.J. 518; 20 E.B. 529 and Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674; 17 M.L.T. 115; 19 C.W.N. 370; 13 A.L.J. 223; 2 L.W. 219; 28 M.L.J. 565; 17 Bom. L.R. 426; (1915) M.W.N. 511; 42 C. 876; 42 I.A. 64; 21 C.L.J. 225 mere attestation of a deed does not necessarily import consent to an alienation effected thereby, nor even a knowledge of the contents thereof. But, in the present case, we have something more substantial and less equivocal embodied in the petition of the plaintiff, dated the 10th February 1895, which was incorporated in the decree of the 18th February 1895; we have also his deliberate assertion in his written statement in that suit. The maxim here applies that a subsequent ratification has a retrospective effect and is equivalent to a prior command; omnis ratihabitio retro trahitur et mandato priori oquiparatur [Co. Litt. 207 a; Fleckner v. The Bank of the United States 8 Wheaton 363338; 5 Law. Ed. 631]. A futile effort has been made to escape from this position by the argument that the plaintiff was at the time an infant, that his petition was in essence a transfer of a spes successiones by a reversioner and consequently inoperative in law [Sham Sundar Lal v. Achhan Kunwar 26 I.A. 183; 21 A. 71; 2 C.W.N. 729; 7 Sar. P.C.J. 417; Brindaban Chunder Shaha v. Sureshwar Shaha Pramanik 3 Ind. Cas. 178; 10 C.L.J. 263 at p. 267; Muthuveeru Mudaliar v. Vythilinga Mudaliar 3 Ind. Cas. 476; 5 M.L.T. 122; 19 M.L.J. 88; 32 M. 206] and that in any event, the petition was inadmissible because it was not registered. [Pranal Anni v. Lakshmi Anni 26 I.A. 101; 22 M. 508; 3 C.W.N. 485; 9 M.L.J. 147; Bindesari Naik v. Ganga Saran Sahu 25 I.A. 9; 20 A. 171; 2 C.W.N. 129; 7 Sar. P.C.J. 273; Abdul Saheb Gandigiwad v. Mallikarjunqppa Shivamurteya 22 Ind. Cas. 292; 15 Bom. L.R. 1142 38 B. 2.24.] This contention is entirely baseless; the plea of minority has been rejected as untrue by all the Judges; and the petition does not, either in form or in substance, effect a transfer of an interest in immoveable property, vested or contingent, present or future; but it does record the approval of the transaction by the reversionary heir and thus affords cogent evidence of its propriety. From every possible point of view, consequently, the lease proves unassailable.

27. The result is that in concurrence with the Chief Justice I hold that this appeal must be allowed and the suit dismissed with costs in all the Courts.

Holmwood, J.

28. It is unnecessary for me to add anything to the judgments just delivered with which I am in full agreement.


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