1. We do not think we should, under the rules governing second appeals, interfere with the judgments and decrees passed by the lower appellate Court in these cases, although we might wish to maintain. possession which has existed from the year 1871 and although the present defendants are in one sense bona fide purchasers for value. Bat they claim title under, amongst others, an instrument dated the 14th January 1871 in which three of the parties were Hindu females, Mayabati, Nitya Kali and Durga Mani and they ought to have been cautious in making purchases.
2. The plaintiff is admittedly one of the next takers after the death of Durga Mani of the estate left by her son Ashutosh. He is, on the findings arrived at by the lower Courts, not barred by any rule as to the limitation of suits. The only question is--Is he bound by the terms of the instrument of the 14th January 1871
3. Two contentions have been raised before us. The first is that Mati Sundari, the daughter of Durga Mani, had no son living at the date of the instrument and, therefore, the transaction evidenced by it was one between Durga Mani and the then next reversioner Kesab Chandra and would, therefore, be binding on the plaintiff. The finding of fact, however, of the lower appellate Court is that it was not only not shown that Mati Sundari had no son at the time but that there was every reason to suppose that she had. It is admitted before us that we cannot set aside the finding except on the ground that the lower Court ought to have allowed the defendants an opportunity of adducing fresh evidence on the point. But no foundation was laid for such indulgence and we cannot allow the prayer for leave to adduce farther evidence in support of the contention raised.
4. The second contention is more important but is equally untenable. The title of Darga Mani to a third share or 5 annas 6 gundas 2 howris and 2 krants share of the properties cannot now be denied. She gave up her right, to a 1/12 share or 1 anna 6 gundas 2 kowris and 2 krants in favour of Kesab Chandra and his adoptive mother Mayabati. She had, however, no right under the Hindu Law to do so.
5. It has been contended that her relinquishment was necessitated by circumstances over which she had no control and her act must be considered to be one arising out of legal necessity. At all events, it has been urged, the instrument must be considered to be the outcome of a family settlement putting an end to disputes amongst the members of the same family. The last argument cannot be accepted as Durga Mani had only a Hindu widow's estate and the immediate reversioner or reversioners were then born and were no parties. Stapilton v. Stapilton 1 S.E.C. (O.S.) 16 : 1 W. and T.L.C. 223 : 1 Atk. 2 (1739) cannot, therefore, apply.
6. We would have held that Durga Mani's act was dictated by prudential considerations and was, therefore, binding on the plaintiff, but Kesab Chandra set up a right which it must be held he know he had not and so far as he and his legal representatives are concerned, they cannot be allowed to take advantage of his wrongful act. He took advantage of his position as the eldest male member. It was not, therefore, an act which would bind a reversioner.
7. We, therefore, dismiss these appeals with costs.