1. This is an appeal by the plaintiffs against the judgment of the learned Additional Subordinate Judge of Darbhanga dismissing their suit.
2. The plaintiffs are the sons of one Kesab Misser deceased. Kesab was step-brother of Madhab, the father of the defendants third party. The defendant No. 1 is the widow of and the defendants Nos. 2 to 5 the daughters of Nunoo Pershad Misser who died on the 18th of Baisakh 1313. Nunoo also left him surviving a son Nageswar Pershad. He died childless on the 24th Bhadro 1313.
3. The plaint in this suit alleges that on the death of Nunoo, his son Nageswar succeeded to his properties and that on the death of Nageswar his mother, the defendant No. 1, took the properties. Further, that the defendant No. 1 wishing to benefit her daughters, the defendants Nos. 2 to 5, caused a false Will of Nunoo to be filed before the District Judge of Darbhanga by her daughters and that in that case, Madhab Misser at the instigation of the defendants Nos. 8 and 9 (who are alleged to be servants of the defendant No. 1) filed a fictitious objection which was rejected by the Judge. That the servants of the defendant No. 1 knew full well (the word is given in the translation of the plaint as 'probably' but this must be a mistranslation) that the Will was invalid; so with a view to establish a permanent title in future got a Suit No. 277 of 1907 instituted by Madhab for declaring the said Will (of which Letters of Administration with the Will annexed had been already granted) declared invalid. That with a view to deprive the plaintiffs of their rights, the parties to that suit entered into a fraudulent and collusive solenama under which the immoveable properties described in the Schedule (i) to the plaint and forming a portion of the estate of Nageswar Pershad Misser, were given to Madhab, the properties described in the Schedule (ii) to the defendants second party, and the properties described in the Schedule (iii) to the defendants fourth party.
4. The plaintiffs further allege that the defendant No. 1 was won over and on the 25th of June 1909, executed a deed of relinquishment and that the defendant No. 1 is still in possession of the properties of Nageswar.
5. On these allegations, the plaintiffs asked the Court to make a declaration that the solenama and bainama are invalid, null and void and are not binding on the plaintiffs and cannot prejudice their right of inheritance.
6. The learned Judge at the trial found that all the transactions challenged by the plaintiffs in their plaint as being fraudulent, were in fact made and done in good faith.
7. On opening this appeal before us, Sir S.P. Sinha, Counsel for the appellants, stated that he did not intend to challenge the findings of the learned Judge negativing fraud. That being so, it is open to doubt whether the appeal should not be dismissed on that ground. The claim of the plaintiffs to relief in this suit, rests solely on the allegations of fraud made in the plaint. The plaintiffs having failed. to establish fraud, are not at liberty to pick out allegations in the plaint which might have warranted them in asking for relief on some other ground. Hickson v. Lombard (1866) 1 E. & Ir. App. 324 and Rajendra Kumar Base v. Gangaram koyal 6 Ind. Cas. 472 : 37 C. 856 : 12 C.L.J. 70.
8. The material facts relating to the case when they are disentangled from the allegations of fraud and collusion, are simple. The deceased Nunoo Pershad Misser made his Will, dated the. 21st of April 1906, which was registered two days later.
9. Under the terms of the Will, Nunoo gave the whole of his estate to his only son Nageswar subject to certain bequests in favour of his daughters and other relatives. The widow, the defendant No. 1, took no interest under the Will.
10. By Clause 6 of his Will, the testator provides that if Nageswar died without issue, his four daughters should succeed to his estate. As I have already said, Nageswar died, shortly after the testator, a minor and without ever having had any issue. The learned Judge has observed in the course of his judgment that 'it is clear that Choudhury Nunoo Pershad had no right to make this Will while he and his son lived in a joint family.'
11. The learned Judge, however, overlooked the fact that the testator states in his Will 'I have many moveable and immoveable properties, both ancestral and self-acquired and it is necessary to give to the said daughters and their heirs, something out of the said properties according to the custom of the family.' There was also evidence before the learned Judge that the testator was possessed of self-acquired properties. A person claiming under the Will, if acting in good faith, might not unreasonably suppose that there were properties of the testator which passed under the terms of his Will. Next the three adult daughters of Nunoo applied to the District Judge for grant of Letters of Administration with the Will annexed. This application was opposed by Madhab Misser who was then the sole reversionary heir. A perusal of the order-sheet of the learned District Judge, shows that his opposition was genuine and strenuous. The Letters of Administration were issued to the three adult daughters of the testator on the 3rd of October 1907.
12. On the 11th of August 1907, that is, before the grant of the Letters of Administration, Madhab instituted a regular suit asking for a declaration that Nageswar took the whole of the properties on the death of Nunoo by right of survivorship and alternatively if Nageswar came into possession of the properties under the Will, for a declaration that Nageswar took an absolute interest under the terms of the Will. This suit came on for trial and after the trial had proceeded for several days, the parties came to a settlement.
13. On the 22nd of February 1909, the parties filed the petition of compromise in Court and on the next day, the suit was decreed in terms of the compromise.
14. By the compromise, the property was dealt with as follows:
(a) The whole of the properties were deemed to be the estate of Nageswar.
(b) The moveable properties were declared to be the absolute property of the defendant No. 1.
(c) The defendant No. 1 relinquished in favour of Madhab her widow's estate in the whole of the immoveable property.
(d). Madhab granted to the daughters of Nunoo half of the immoveable properties.
(e) Madhab granted to the defendant No. 1 50 bighas of land for her life with remainder to Madhab and his heirs. Similarly, the daughters of Nunoo granted to the defendant No. 1 another 50 bighas with remainder to the daughters and their heirs.
15. The other terms of the compromise are no material and have not been referred to on the hearing of this appeal. The terms of the compromise have been given effect to by deeds executed by and between the parties.
16. The sole argument addressed to us on behalf of the appellants turned on the question as to whether or not the compromise was valid and binding.
17. The cases dealing with the power of a Hindu widow or mother to deal with the estate of her deceased husband or son to which she has succeeded as heiress, are numerous. It is not necessary for us to go through the long list of authorities as they have all been considered by a Full Bench of this Court in the case of Debi Prosad Chowdhry v. Golap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499. In that case, all the earlier authorities were reviewed. First, it may be taken as established without doubt that a Hindu widow may relinquish her estate and this will have the effect of accelerating the estate of the next reversioner. Further, an alienation by a Hindu widow will be valid where there was a consent of the next heirs and the alienation is capable of being supported by reference to the theory of relinquishment and consequent acceleration of the interest of the consenting heirs. But the alienation in such a case must be of the whole of the estate.
18. The authorities, however, appear to show that the widow is not precluded from obtaining a benefit for relinquishing her estate. As was observed by Garth, C. J., in the case of Nobokishore Sarma Roy v. Hari Nath Sarma Roy 10 C. 1102 at p. 1108. 'But there is no concealing the fact that although such a relinquishment may be made by a widow in perfect good faith, and even under such circumstances, as to be a meritorious self-sacrifice, it is nevertheless possible and, indeed, it not unfrequently happens that a widow who is anxious to turn her husband's estate into money, may arrange with the next heir of her husband for the time being, to alienate the estate to some third person for their mutual benefit. They may both share in the profits of such a transaction; and it sometimes happens, that in this way, the estate is alienated from the husband's family, so that the person who would be the next male heir at the widow's death, is virtually deprived of his rights. But if it is once established, as a matter of law that a widow may relinquish her estate in favour of her husband's heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make. And it seems equally impossible to deny, that for a long series of years, this Court has treated and considered such alienation as lawful.' The latter part of this statement was approved of by the Privy Council in the case of Bajrangi Singh v. Manokarnika Bakhsh Singh 35 I.A. 1 : 30 A. 1 at p. 18 : 12 C.W.N. 74(P.C.) : 17 M.L.J. 605 : 9 Bom. L.R. 1348 : 6 C.L.J. (6) 10 C. 392. In the present case, the compromise was challenged on the following grounds:
First, it was said that the deed of relinquishment (Exhibit H) executed by the defendant No. 1 pursuant to the terms of the compromise, does not include a house at Nadat. But the learned Subordinate Judge remarks that there is no evidence to support this argument. It is further to be observed that Exhibit H was intended to apply to the. whole of the immoveable properties and in the Schedule there is mentioned a property at Nadat which may be the house that is alleged to be there.
19. Next, it was objected that the whole of the moveable properties had, been given to the defendant No. 1. But under the Mithila Law, the widow takes an absolute interest in the moveables Birajun Koer v. Luchmi Narain Mahata 10 C. 392. A further point was raised under this head, namely, that the defendant No. 1 was given absolutely the mortgage-bonds. It was argued that under the terms of the Transfer of Property Act, a mortgage is immoveable property. But even if that be so, the Transfer of Property Act does not regulate the right of a Hindu widow or mother to succeed to the estate of her deceased hasband or son. under the Hindu Law, as under the English Law, a mortgage is treated as personal or moveable property, the land being considered as merely a pledge or security for the money lent. Further, it is to be noticed that in the 4th Schedule to the plaint the plaintiffs treat the mortgages as moveable property, the two decrees mentioned in the 4th Schedule being decrees on mortgages. The clause of the compromise that was most strongly relied on was Clause 6 under which Madhab and the daughters of Nunoo respectively undertook to give to the defendant No. 1 50 bighas of land. It is argued that under this clause, the widow's estate in a portion of the property remained. This, however, in my opinion, is not so. In one case the 50 bighas were given to the defendant No. 1 for her life with remainder to Madhab and his heirs and in the other case, it was given to the defendant No. 1 for life with remainder to the daughters of Nunoo and their heirs. This can in no way be considered as a reservation or restoration of the widow's estate that the defendant No. 1 formerly enjoyed in the property. The life-estate in the 100 bighas is essentially different from the widow's estate which the defendant No. 1 formerly enjoyed. For example, if a case of legal necessity arose, the defendant No. 1 would not be at liberty to mortgage the 100 bighas and the course of succession thereto would be different to what it would have been if the defendant No. 1 had retained her estate as a Hindu widow.
20. I think that under the terms of the compromise and the deed of relinquishment (Exhibit H), the defendant No. 1 effectually relinquished and destroyed her estate as a Hindu widow. That being so, having regard to the decisions mentioned above, the parties were at liberty to make any bargain they thought fit for the division of the property.
21. I may further mention that I consider that the compromise might be supported as a family arrangement between all the parties competent to deal with the whole of the property, namely, the daughters who claimed under the Will on the one hand and the defendant No. 1 and Madhab, the sole reversioner, on the other hand. On the principles laid down by the Privy Council in the case of Khunni Lal v. Kunwar Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 (P.C.) : 8 A.L.J. 552 : 13 Bom. L.R. 427 : 13 C.L.J. 575 : 10 M.L.T. 25 : 21 M.L.J. 645 : (1911) 1 M.W.N. 432 : 38 I.A. 87, the compromise in this case would be binding as acknowledging and defining the antecedent title in the parties.
22. In the result, the present appeal fails and must be dismissed with costs. Two sets of costs are allowed, one set to Dr. Mitter's client and another set to Babu Sorashi Charan Mitter's client.
23. I agree.