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Mahamed Keramut Ulla Miah and anr. Vs. Keamutulla Meah and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.886
AppellantMahamed Keramut Ulla Miah and anr.;chintamannessa Bibi and anr. and Refatulla Meah;kuramannessa Bibi
RespondentKeamutulla Meah and ors.;kuramannessa Bibi and ors.;chintamannessa Bibi and ors.
Cases ReferredStapilton v. Stapilton
Excerpt:
family arrangement, when can he set aside - minor, whether bound by arrangement--muhammadan joint-family--property acquired by manager--presumption--burden of proof--parties adducing evidence, effect of. - .....to get a 9 annas 15 gandas share and the heirs of kismat a 6 annas 5 gandas share of the whole family property with some exceptions. the heirs of kismat were to make no claim to the money accumulated in the time of enat and the heirs of enat were to make no claim to the cash in the hands of the heirs of kismat or the business carried on in their separate names, nor were they to claim 49 bighas of jote land. as between the heirs of enat, hefazatulla was to get a larger share than his half-brothers on the ground that there was no money in his hand, nor any separate business in his name. special provision was made as to certain moveable property and the document concluded with three schedules, the first two stating the individual shares of each member of the two branches of the family.....
Judgment:

1. These four appeals have been heard together as were the three suits in the lower Court out of which they arise. The principal appeal is Appeal No. 11 of 1915 arising out of Suit No. 275 of 1913. The parties to this litigation are all either the direct descendants or married to the direct descendants of one Damu, who died about, 1870 A. D, He left two sons Enat and Kismat. Kismat died in 1S89 leaving a widow, four sons and a daughter who are defendants Nos. 1--6 in the principal suit. The eldest son's name is Kismat and that of the daughter Nurjahannessa. Damu's elder son Enat died on the 2nd May 1902. By his first wife Budhimonnessa, who predeceased him, Enat had a son and a daughter. The son, Hefazatulla, died in February 1905 leaving two widows, Nurjahannessa (defendants No. 5), the above mentioned daughter of Kismat, and Monjudanessa (pro forma defendant No. 9) who has Bold her interest in her husband's property to other members of the family and gone to live in her father's village. The daughter of Enat by Budhimonnessa is Kuramonnessa (defendant No. 7), who is the wife of Refatulla (defendant No. 8). Enat's second wife was Chintamonessa (plaintiff No. 2) and by her he had three sons Keramatulla (plaintiff No. 1), Jiaratulla and Rahmatulla. Jiaratulla died after Hefazat and Rahmatulla died after Jiaratulla before the institution of this suit.

2. It is admitted that from the time of Damu until the death of Hefazat all the members of the family lived in jointness and that the property left by Damn was owned as joint property by them. The first main point in dispute in this appeal, as it has been argued before us, is whether the joint property of the family consisted only of property acquired in Damu's name, as the plaintiffs appellants allege, this property being that described in schedule ka of the plaint or whether, as the defendants respondents allege, the property described in schedule kha of the plaint, which was acquired in the name of Enat, was also joint property. The second main point in this appeal is whether the rights of the parties to the property in dispute were finally settled by an amicable family arrangement set out in a solenama which was filed in the District Judge's Court on the 27th February 1903. The learned Subordinate Judge who tried these suits has decided both these points in favour of the defendants-respondents. The second of these points is the one on which the decision of the appeal really depends and we will deal with it first.

3. Enat, as stated above, died on the 2nd May 1902. On the 11th November of that year two applications were filed in the Court of the District Judge, one for succession certificate under Act VII of 1689 for the collection of debts due to the estate of Enat, the other for the guardianship of the persons and properties of Enat's minor sons. The first of these applications, Exhibit 15 (1), purported to be signed by Chitamonnessa for herself and as guardian of her three minor sons and by Hefazatulla and Kurmonnessa, that is to gay, all the heirs of Enat. The second, Exhibit 15 (2), purported to be signed by Chintamonnessa alone. On 28th November following Kismat, the eldest son of Kismat, filed petitions of objection in both cases alleging that the properties described in those petitions as having belonged to Enat alone belonged to the two brothers, Enat and Kismat, jointly in equal shares. On the 7th February 1903 a petition was filed on behalf of both parties asking for a month's time to compromise the case. The Court directed a draft of the compromise to be filed on the 9th February and this was done. Then, on the 27th February 1903, the petition of compromise, Exhibit 15(3), was filed. The remaining heirs of Kismat were made parties and the two cases were decided in accordance with the petition of compromise. Chintamonnessa was appointed guardian of the persons and property of her minor children and the certificate of succession to the estate of Enat was granted to the applicants in that case and Kiamatulla jointly. The Court, in the order granting permission for the cases to be settled in the terms of the compromise petition, stated that the arrangements proposed in that petition appeared to be for the benefit of the minors concerned. The principal terms of the compromise were that the heirs of Enat were to get a 9 annas 15 gandas share and the heirs of Kismat a 6 annas 5 gandas share of the whole family property with some exceptions. The heirs of Kismat were to make no claim to the money accumulated in the time of Enat and the heirs of Enat were to make no claim to the cash in the hands of the heirs of Kismat or the business carried on in their separate names, nor were they to claim 49 bighas of jote land. As between the heirs of Enat, Hefazatulla was to get a larger share than his half-brothers on the ground that there was no money in his hand, nor any separate business in his name. Special provision was made as to certain moveable property and the document concluded with three schedules, the first two stating the individual shares of each member of the two branches of the family and the third containing a list of the jotes which were to belong to the heirs of Kismat only.

4. The case set up by the plaintiffs-appellants is that these proceedings in the District Judge's Court were fraudulent and collusive transactions in which Hefazat-ulla, the step-son, and Refatulla, the husband of the step-daughter of the plaintiff No. 2, Chintamonnessa, combined with Kismat to defraud her and her children of their right shares in the property left by Enat. It is alleged that Chintamonnessa and her son Keramat had no knowledge of these cases nor of the compromise until nearly nine years afterwards. In November 1911 certain applications for mutation of names in respect of the deceased Hefazatulla's share in certain revenue-paying estates were made to the Collector. Notices of these applications were served on the plaintiffs and their case is that they then for the first time came to know that the share recorded in the name of Hefazatulla was in excess of the shares recorded in the names of plaintiff No. 1 and his brother Rahamat-ulla. This led the plaintiffs to make enquiries, which resulted in their coming to know of the collusive applications made to the Court in 1902 and the fraudulent petition of compromise which was filed in those proceedings.

5. In our opinion the plaintiff's case that this compromise was fraudulent entirely fails. As we are in entire agreement with the learned Subordinate Judge on this point, we shall give our reasons at less length than would otherwise have been necessary. One of the weakest points in the plaintiffs case is that they have failed to show any reason why Hefazat and Riafatulla should act in collusion with Kismat to defraud Chintamonnessa and her sons. Hefazat gained nothing by the compromise even though he was given a larger share than his half-brother, since if the property in Enat's- name had been treated as his sole property, Hefazat's share according to the Muhammadan Law of succession would have been a little over 3 annas 2 gandas. By the compromise he got 3 annas 1 ganda 1 kara. Refatulla was a distinct loser by the compromise, since it considerably reduced the shave of his wife Kuramonnessa. Before the lower Court the learned Pleader for the plaintiffs had to admit that he could make no suggestion why Refatulla consented to a compromise which adversely affected his wife's interest. Before us the learned Pleader for the appellants could only suggest that there might have been some private arrangement between Refatulla and Kismat. There is no evidence to support this suggestion. Refatulla and his wife had a serious quarrel in 13l6 B. S. (1909 10 A.D.) and Kuramonnessa has since been living with Kismat's hairs, but before that she and her husband appear to have been living amicably with the heirs of Enat. Since the quarrel Refatulla Las been siding with the plaintiffs and there seem good grounds for the contention of the respondents that it is Refatulla who is the instigator of the present litigation.

6. The story told by the defendants about what happened on Boat's death is certainly probable. It would be necessary to take out a certificate of succession for the collection of Enat's debts and to have a guardian of his minor children appointed. In making applications to the Court for these purposes Hefazat. and Refatulla would be tempted by the fact that certain property stood in Enat's name to make an assertion on behalf of his heirs that this property belonged to Enat alone. This would naturally lead to an objection by Kismat on behalf of Kismat's heirs and a serious quarrel between the two branches of the family. Then on the intervention of neighbours the contending parties would see that it was to their advantage to settle their dispute. Not only would the expenses of litigation be saved, but also serious loss prevented from debts besoming barred and difficulties arising about collecting rent from tenants of the joint property. That there was such a settlement is satisfactorily proved by defendants' witnesses, whom we see no reason to disbelieve on this point. It is pointed out that there are discrepancies in the evidence as to who were the persons who actually settled the terms of the compromise. But it must be borne in mind that this was not a case of reference to arbitration where the disputing parties agree to abide by the decision of the persons appointed for that purpose. The dispute was settled by the parties themselves acting on the advice of friendly counsellors. In such circumstances it is to be expected that more than one consultation should be held and that the same persona would not always be present. There is nothing improbable in Kuramon-nessa's story that after the main condition of settlement that Boat's heirs should get 9 3/4 annas and Kismat's heirs 6 1/4 annas had been decided, Hefazatulla Hazi of Kharia alone assisted in fixing the respective shares of each individual. Another objection taken to the story of compromise is that it is inconsistent with a statement made in the petition for adjournment, Exhibit M (1) filed on the 7th February 1903, to the effect that it had been settled that a compromise should be made. There can be no doubt that at the time this petition was filed practically all the terms of the com-promise had been settled. But petitions for adjournments are not always carefully drafted and we attach no importance to this inconsistency. On the evidence we are satisfied that the compromise was a genuine compromise settling a real dispute and that it was arrived at in the manner described by the defendants' witnesses.

7. Nor have we any doubt that Chintamon-nessa was fully aware of all these transactions. Evan if the applications to the District Judge had been made without her knowledge, which we certainly do not believe, she must have learnt about them when Kismatulla started the quarrel. The account given by Golapunnessa and Kuramonnessa of the incident of Chintamonnessa, trying to remove pillows in which money was concealed appears to be a true story and shows that Chinta-monnessa was taking keen personal interest in the dispute about the family property. When the terms of settlement were being discussed with neighbours, she could not have remained ignorant. The story told in the plaint that Chintamonnessa and Keramut first came to know of the com-promise in Kartic 1318 B. S. when they were served with the notice of the application for registration in the Collectorate, is absurd. The notice then served on them would not have shown that the shares recorded as registered in the name of Hefazatulla were in excess of the shares recorded in the name of his half-brother. It was suggested on behalf of the appellants that the service of the notice led to enquiries being made and then the differ-ence in the shares was ascertained. But this is inconsistent with Chintamonnessa's evidence, for she says Keramat asked about the shares on reading the paper brought by the peon. Keramutulla, who could have given important evidence on this point, has not gone into the witness-box, pre-sumbaly because be was afraid to stand cross-examination. It is unnecessary to state at length all the transactions which took place after the compromise which are inconsistent with the plaintiffs' story of ignorance of it until Kartic 1318 B. S. They are set out in the judgment of the learned Subordinate Judge and it is sufficient to mention the more important, namely, the separate collections of rent, the bonds, Exhibits Q (1), Q (2), Q (3), executed by Shasi Bhusan Rai Chowdhury and the sale by Monjuddenessa, Hefazat-ulla's second wife, of her interest in the family property. On consideration of the evidence both oral and documentary that has been put before us by the learned Pleaders on both sides, we are satisfied that the compromise of the 27th February 1903 was agreed to by all the parties concerned and that the fraud alleged by the plaintiffs in this connection has not been proved.

8. On behalf of the appellants it is con-tended that even if the compromise can-not be set aside on the ground of fraud it is not binding on the first plaintiff, Keramutulla, who was a minor at the time, unless it be shown that it was for his benefit. For the respondents it is contended that this compromise was of the nature of a family settlement which stands on a higher footing than a simple compromise of a suit and that the Court cannot go behind it, unless it is vitiated by fraud or misrepresentation or some similar defect. This connection is supported by authority. The oases bearing on the point are referred to in the judgment of Mukherjee, J., in Upendra Nath Bose v. Bindeshri Prosad 32 Ind. Cas. 468 : 22 C.L.J. 452 at p. 476 : 20 C.W.N. 210. And from these decisions the following principles applicable to the present case appear to be established:

In the absence of proof of mistake, inequality of position, undue influence, coercion, fraud or any similar ground, a partition or family arrangement made in settlement of a disputed or doubtful claim is a valid and binding arrangement which the parties thereto cannot deny, ignore or resile from.

9. If the parties have settled a dispute, such settlement will not be set aside on the ground that it gave to one of the parties more than what he might possibly have recovered if he had taken the judgment of the Court upon the matters in difference between them. The Courts will not be disposed to scan with much nicety the quantum, of consideration.

10. For the appellants it is contended that in none of these oases were a minor's interests concerned. In the case of Rameshwar Prosad Singh v. Lachmi Prosad Singh 31 C. 111 : 7 C.W.N. 688 a Divisional Bench of this Court followed the general rule in Stapilton v. Stapilton (1739) 1 Atk. 2 : 1 Wh. & T.L.C. (7th Ed.) 223 : 26 E.R. 1 in a case in which a minor had been of the parties to a family arrangement. This decision was affirmed by the Judicial Committee on appeal in Rameswar Pershad Singh v. Ram Bahadur Singh 5 C.L.J. 175 : 2 M.L.T. 165 : 11 C.W.N. 178 : 34 C. 70 : 17 M.L.J. 59 (P.C.); Stapilton v. Stapilton (1739) 1 Atk. 2 : 1 Wh. & T.L.C. (7th Ed.) 223 : 26 E.R. 1 was decided in 1739 and has been repeatedly followed both in England and India as the leading case on family arrangements. There is nothing in the doctrine of family arrangements opposed to the general principle that when it is sought to bind a minor by an agreement entered into on his behalf, it must be shown that the agreement was for the benefit of the minor. If improper advantage has been taken of the minor's position, a family arrangement can be set aside on the ground of undue influence or inequality of position or one of the other grounds which would vitiate such arrangement in the case of adults. But where there is no defect of this nature, the settlement of a doubtful claim is of as much advantage to a minor as to an adult and where a genuine dispute has been fairly settled, we hold that the dispute cannot be re-opened solely on the ground that one of the parties to the family arrangement was a minor.

11. But in the present case, as the appeal has been argued, it has been necessary for us to consider the evidence on the question whether the property which stood in Enat's name was joint property or not. It was the main contention of the learned Pleader on behalf of the appellants that the evidence proved that this property was the sole property of Enat and that this fact strongly supported his contention that the compromise was fraudulent. In our opinion this contention has failed. It is true that as the parties are Muhammadans there is no legal presumption that the property acquired by Enat in his name, when manager of the joint family property, was also joint family property. Primarily the burden of proof is on the defendants respondents to show that the ostensible state of things is not the real state of things. But in the present case no question of onus as a question of law arises, as both sides have adduced evidence on this point. In the view we take of the compromise, the statement in the petition Exhibit 15 (3), ' In fact all the properties under his (Enat's) management were ejmali and belonged to the said two brothers in equal shares,' is sufficient to turn the scale on this issue in favour of the defend ants. A great deal of the evidence that has been put before us is of very little (assistance to the plaintiff-appellant's case) since, whether this property belonged to the family or not, Enat as manager of the joint properly after Damu's death would appear to the public to be the owner. As ; regards transaction during Damu's lifetime the fact that Enat's name appears in several documents as the owner is of little importance since it is not unusual for a Muhammadan father to acquire and hold property in his son's name. The documents which most support the plaintiff's case as showing that Enat and Kismat had separate property are the bond Exhibit 1 (8) and the receipt and letter Exhibits 3 (1) and 4 (1). From the bond Exhibit 1 (8) it appears that in 1274 and 1276 B. S. Enat had borrowed sums of money from Kismat and executed that bond for the total debt of Rs. 995 on 19th Magh 1276. This bond bears an endorsement. Exhibit 2 (6), dated 12th Falgun 1277, apparently signed by Kismat acknowledging receipt in full. From the receipt and letter Exhibits 3 (1) and 4 (1) and also the Kabala Exhibit ft (1) it appears that in Bhadra 128l B. S. Enat and Kismat jointly bought a Gola at Nawabgunj for Rs. 400 and three months later Kismat was unwilling to retain his share and took back Rs. 200 from Enat. The learned Subordinate Judge holds that Exhibit 1 (8) and a connected document Exhibit 1 (54) are not above suspicion and that Exhibits 3 (1) and 4 (1) are spurious. We think they are probably genuine. But even if these two brothers did hold some property separately fifteen * years before Kismat's death, we hold it well established that after Kismat's death and probably for some jears before all the property in the name of the two brothers was managed by Enat as joint family property. This appears from the account papers of Enat from 1305 to 1308 B. S., which the defendants have been able to produce and as to the genuineness of which we have no doubt. We do not think it necessary to add anything to the remarks as to these accounts by the learned Subordinate Judge with whom we are in entire agreement on this point. On a consideration of the evidence as a whole we are satisfied that the properties that were under Enat's management at the time of his death were ejmali properties. It, therefore, follows that even going behind the petition of compromise it must be upheld as against the plaintiff Keramatulla also on the ground that though he was a minor when the family settlement was made the settlement was for his benefit.

12. The result, therefore, is that the main appeal No. 11 of 1915 must be dismissed with costs. The remaining appeals can be dealt with very shortly.

13. Appeal No. 22 6t 1915 is an appeal by Chintamonessa and Keramatulla against the preliminary decree for partition obtained against them by Kuramonnessa in Suit No. 463 of 1912. The decision of this appeal admittedly depends solely on the decision of the main appeal and we accordingly dismiss Appeal No. 22 of 1915 with costs. Hearing fee Rs. 16.

14. Appeals Nos. 414 and 412 of 1915 arise out of Suit No. 401 of 1912 in which Kuramonnessa sued her step mother Chintamonnesa and her husband Refatulla for accounts. In this suit she obtained an ex parte decree against Refatulla only. Kuramonessa appealed on the ground that she should have been granted a decree against Chintamonnessa also. This appeal was not pressed at the hearing and we accordingly dismiss Appeal No. 214 of 1915 and direct that the parties to this appeal do bear their own costs.

15. Appeal No. 412 is preferred by Refatulla against the ex parte decree against him. This appeal appears to us to be a mere device intended to throw doubt on the finding of the Subordinate Judge that Refatulla was siding with the appellants in their litigation. It was contended in support of this appeal that Refatulla was a mere tool in the hands of Chintamonnessa who alone was managing the property. As the appeal of Kuramonnessa was not pressed, we cannot express any opinion whether Chinta-monoessa should also have been held liable to render accounts. We find, however, ample evidence to support the finding of the lower Court that Refatulla was the de facto manager and to justify the ex parte decree passed against him in this suit. We, therefore, dismiss Appeal No. 412 of 1915 with costs, Rs. 100 (Rupees one hundred).


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