Musammat Phool Kuer Vs. Musammat Pem
Kuer & ANR  INSC 23 (24 April 1952)
MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA
CITATION: 1952 AIR 207 1952 SCR 793
CITATOR INFO :
R 1960 SC1118 (17)
Hindu law--Widow--Surrender to next
reversioner and stranger--Validity--Compromise by widow--When binding on
(1) (19I8) 27 C.L.J. 532.
A relinquishment by a Hindu widow of her
estate in favour of the next reversioner and a stranger in equal moieties is
not a valid surrender under Hindu law. A valid surrender cannot be made in
favour of anybody except the next heir of the husband.
Mummareddi Nagireddi v. Pitti Durairaja Naidu
 (S.C.R. 655) followed.
It is competent to a Hindu widow to enter
into a compromise in the course of the suit bona fide in the interest of the
estate and not for her personal advantage and a decree passed on such a
compromise will be binding on the reversioner. The question whether a
compromise is a bona fide settlement of a disputed right between the parties
depends on the substance of the transaction and in order that it may bind the
estate it should be a prudent and reasonable act.
[On the facts their Lordships held, agreeing
with the High Court, that, the compromise in the present case was neither
prudent nor reasonable so far as it affected the interests of the estate and of
the ultimate reversioners and that it was not, therefore, binding on the
reversioners.] Ramsumaran Prasad v. Shyam Kumari (49 I.A. 342), Mohendra Nath
Biswas v. Shamsunnessa Khatun (21 C.L.J. 157) and Imrit Kunwar v. Roop Narain
Singh (6 C.L.R. 76) followed. Mata Prasad v. Nageshar Sahai (52 I.A. 393)
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 29 and 30 of 1951. Appeals from the judgment and decree dated 26th
October, 1943, of the High Court of Judicature at Allahabad (Verma and Yorke
JJ.) in First Appeal No. 48 of 1938 arising out of the judgment and decree
dated 6th August, 1937, of the Court of the Additional Civil Judge at Agra in
Suit No. 30 of 1936.
M.C. Setalvad and Kirpa Ram (K. B. Asthana,
with them) for the appellant in Civil Appeal No. 29 of 1951.
K.N. Agarwal for the appellant in Civil
Appeal No. 30 of 1951.
C.K. Daphtary (G. C. Mathur, with him) for
the respondents in both the appeals.
1952. April 24. The Judgment of the Court was
delivered by MAHAJAN J.
796 Mst. Khem Kuer, the young widow of Shah
Chiranji Lal, was murdered on the 28th August, 1919, and Mst. Mohan Kuer, the
mother, died on the 5th December, 1932. Mst. Prem Kuer, the respondent in the
appeal, claiming herself to be the heir to Shah Chiranji Lal as his sister,
brought the suit giving rise to this appeal in the court of the civil judge,
Agra, against, amongst others, Mst. Phool Kuer, the present appellant, for
recovery of possession of the properties of Shah Chiranji Lal and mesne
Mst. Prem Kuer joined her half-sister Mst.
Ram Kuer and their sons as plaintiffs along with herself. In the array of
defendants were impleaded Mst. Phool Kuer and Mst. Khem Kuer, widows of Shah
Jwala Prasad and Shah Madho Lal and his sons and a host of others as
transferees of the properties.
The main defence to the suit was that Shah
Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to
the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family
settlement arrived at between the parties in suit No. 120 of 1915, that by
virtue of this family settlement the estate of the deceased was vested in them
subject to the life estates of the two women and that the plaintiffs who came
to be recognized as reversioners by the Hindu Law of Inheritance (Amendment)
Act, 11 of 1929, were not entitled to claim it. It was further pleaded that on
the death of Khem Kuer in 1919, Mohan Kuer surrendered the estate in favour of
Jwala Prasad and Madho Lal and they took possession of it as owners and the
plaintiffs who subsequently became statutory heirs in 1919 could not be allowed
to question the surrender and reopen the succession which could not remain in
The learned additional civil judge who tried
the suit, dismissed it holding that the compromise of 1915 was a bona fide
settlement of a bona fide dispute and was binding as a family settlement being
for the benefit of the estate, that Mohan Kuer surrendered the estate validly
in favour of Jwala Prasad and Madho 795 MAHAJAN J.--The dispute in this appeal
concerns the zemindari and house properties last owned by Shah Chiranji Lal who
died at a young age on the 14th May, 1913, leaving him surviving a widow, Mst.
Khem Kuer, and his mother Mst.
Mohan Kuer, besides a number of collaterals,
indicated in the pedigree table below :-Shah Pirthi Raj :
: : :
Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan
Kuer : :
: : : :
: : : :
: : Hira Lal :
: : : :
: : : Shah Jai : : : Kisen : : :
Mst. Ram Kuer :------------------=Kherpal : :
: : : :
: :Shah Jwala Shah Sri
--------------------------------:Prasad Kisen : : : :(1)Khem :
: : : : Kuer Shah Madho Ram Chand Lachman
Kishen Lal :(2)Phool Lal Prasad =Mst. Umri : Kuer :
: : --------------: : : :
: : SudarMad: Dwarka shan sudan : Prasad Lal
Lal ---------------------------------------------------------: : : :
: : : :
: : : :
Ganga Prasad Jamna Mst. Prem Kuer Shah
Chiranji Lal Prasad =Lekh Raj =Mst. Khem Kuer :
Manohar Lal Lachmi Narain 797 Lal and they
entered into possession of it after the death of Khem Kuer. Some of the
transferees who had been impleaded as defendants compromised the suit with the
plaintiffs and that part of the suit was decided according to the terms thereof
between those parties.
Mst. Prem Kuer preferred an appeal to the High
Court of Judicature at Allahabad against the decree dismissing her suit. The
High Court by its judgment dated the 26th October, 1943, allowed the appeal,
reversed the findings of the learned additional civil judge on the above issues
and decreed the plaintiffs' suit with costs. Some of the transferee-defendants
compromised with the plaintiff-appellant in the High Court and the appeal was
decided in terms thereof in their favour.
Two main points which are in controversy in
this appeal and require consideration, are:-
1. Whether the compromise in suit No. 120 of
1915 amounts to a family settlement and binds the plaintiffrespondent, and,
2. Whether the surrender by Mst. Mohan Kuer
was a valid surrender under Hindu law.
In order to appreciate the respective
contentions of the parties, it is necessary to set out shortly in chronological
order the history of the events which has resulted in this controversy.
As already stated, Shah Chiranji Lal died on
the 14th May, 1913, leaving considerable movable and immovable property. At the
time of his death, his widow Khem Kuer was about eleven years old and his
mother Mohan Kuer was about 53 years old. The two reversioners, Shah Jwala
Prasad and Shah Madho Lal, made an application for mutation of names of the
estate in their favour claiming it on the basis of a will alleged to have been
made by Shah Chiranji Lal on the 13th May, 1913, a day before his death. On the
10th of September, 1913, an application was made by Mohan Kuer for herself and
as guardian of Khem Kuer Challenging the genuineness of the will and claiming
798 that the estate of the late Shah Chiranji Lal should be mutated in their
names. Notice of this application was given to the two reversioners but they
thought it prudent not to appear and to contest the contentions raised by the
two ladies. with the result that the inheritance of the late Chiranji Lal was
mutated in the name of the widow as sole heir under the guardianship of Mohan
Kuer by an order dated the 28th October, 1913. The reversioners had also made
applications in pending suits for getting themselves impleaded as legal
representatives. Mohan Kuer applied for the removal of their names and for
substitution of the name of the widow and of herself in those cases. Pending
decision of these matters, on the 11th May, 1915, suit No. 120 of 1915 was
filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the
13th May, 1913. On the same day an application was made for the appointment of
a receiver and an interim order appointing a receiver was passed by the court.
On the 18th May, 1915, Mohan Kuer for herself and as guardian of the minor
widow made an application praying for the discharge of the receiver. By an
order dated the 23rd September, 1915, the receiver was discharged and it was
held by the civil judge that the plaintiffs had no prima facie case and that
the will propounded by them was a suspicious document. On the 18th December,
1915, suit No. 120 of 1915 was compromised between the parties. This compromise
is in the following terms :-"1. The plaintiffs relinquish their claim for
possession over the estate of Shah Chiranji Lal.
2. The defendants shall have all those rights
to the estate of Shah Chiranji Lal, which she had as a Hindu widow according to
law. After the death of the two Musammats, the plaintiffs in equal shares and,
after them, their heirs, who might have the right of survivorship one after the
other, shall be the owners of the estate of Shah Chiranji Lal.
3. The name of Mst. Mohan Kunwar defendant
against one half of the property in lieu of maintenance, shall continue.
4. Mst. Mohan Kunwar and Mst. Khem Kunwar
shall have power to do anything they might choose with the entire income from
the movable and immovable property, cash, ornaments, amount of decrees and
documents, household goods and other movables, which they might have in their
The plaintiffs or anyone else shall have no
power to interfere or to ask for rendition of accounts.
5. In case Mohan Kunwar defendant dies first,
Mst. Khem Kunwar shall, as a Hindu widow, become the owner in possession of the
entire property, of which Mst, Mohan Kuer might have been in possession in any
way, subject to the provisions of condition No. 4. In ,case Mst. Khem Kuer
defendant dies first, Mst, Mohan Kuer shall as a Hindu widow, become the owner
in possession of the entire property of which.
Mst, Khem Kuer might have been in possession
in any way, subject to the provisions of condition No. 4." In accordance
with the terms of this compromise suit No.
120 of 1915 was dismissed. In the proceedings
that were pending for substitution of names the court on the 22nd December,
1915, ordered that Khem Kuer and Mohan Kuer be impleaded as legal
representatives of the late Shah Chiranji Lal.
On the 2nd September, 1918, Khem Kuer brought
a suit against her mother-in-law Mohan Kuer for a declaration to the effect
that she alone was the lawful heir of Chiranji Lal and was the owner of the
property, mentioned in schedule A and that the defendant had no concern with
it. This suit was compromised between the parties on the 22nd April, 1919.
Mohan Kuer agreed that Khem Kuer's suit be
decreed. Khem Kuer undertook to look after Mohan Kuer in every way and if she
desired to live separately from her, she agreed to pay her a sum of Rs. 3000
per annum by way of maintenance.
Khem Kuer did not live long after her having
become owner of the entire estate of her husband under the terms of this
compromise. As stated already, she was murdered on the 28th August, 1919. The
estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as
well as in accordance with the terms of the compromise of the 18th December,
1915. It is alleged that either on the fourth or the thirteenth day after the
death of Khem Kuer, Mohan Kuer when asked about the mutation of the estate,
said that she had no concern with it and had relinquished it and had devoted
herself to worship. On the 15th September, 1919, an application bearing the
signature of Mohan Kuer in Hindi was presented by her mukhtar Chaturbhuj in the
court of the subordinate judge at Agra, praying that the sale certificate in
suit No. 1919 (Shah Jwala Prasad v. Rai Bahadur Shah Durga Prasad), be prepared
in the names of Shah Jwala Prasad and Shah Madho Lal, for they were the heirs
in possession of the properties of Shah Chiranji Lal. This application (Exhibit
N-31) contains the following recital:-"Mst. Khem Kuer died on the 28th of
August, 1919. I do not want to take any proceedings in my own name. Shah Jwala
Prasad and Shah Madho Lal are the subsequent heirs and it is in their names
that all the mutation proceedings etc. are being taken in the revenue court.
They have been made the heirs in possession of the entire property and an
application has been filed in their names in this court for prepara tion of the
sale certificate. This petitioner has got no objection to the preparation of
the sale certificate in their names, for they are the heirs and are in
possession of the property." The sale certificate was prepared
accordingly. On the 16th September, 1919, Jwala Prasad and Madho Lal applied
for mutation in respect of the lands relating to mauza Somra in the court of
the tahsildar of Etmadpur. In column 5 of this application (Exhibit A-14) it
was alleged that they were entitled to mutation by right of inheritance.
Similar applications were made in respect of other villages also. (Vide Exhibit
128 etc.) Mutations were entered in all the villages on the basis that both of
them were heirs in equal shares to the property of the deceased, though
according to Hindu law, Shah Jwala Prasad alone was the 801 next heir. During
the course of the mutation proceedings one Chintaman, general attorney of Shah
Jwala Prasad was examined on the 11th October, 1919 and he stated that Mst.
Khem Kuer died on the 28th August, 1919, that Shah Jwala Prasad and Shah Madho
Lal were her heirs in equal shares, that Mohan Kuer was the mother-in-law of
the deceased and she did not want her name to be recorded and had made
relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil
court on the 15th September, 1919. Chaturbhuj, general attorney of Mohan Kuer
was examined in the same proceedings on the 27th October, 1919, and he stated
that Mohan Kuer did not want her name to be recorded in place of the name of
the deceased, that she had no objection to the entry of the names of Shah Jwala
Prasad and Shah Madho Lal, that she had sent him for making that statement. He
admitted the relinquishment filed by Mohan Kuer in the civil court with respect
to the property of Mst. Khem Kuer but he was not able to state when that
relinquishment had taken place. The tahsildar after recording these statements
ordered the mutation of names in favour of the two reversioners (Exhibit M-2).
On the 22nd November, 1919, the two
reversioners Shah Jwala Prasad and Shah Madho Lal, having entered into
possession of the estate after the death of Khem Kuer made a gift of property
of the value of about Rs. 50,000 in favour of the sisters of Shah Chiranji Lal
by means of two deeds of gift. (Vide Exhibit M-16). These gift deeds contain
the following recitals :"Shah Chiranji Lal deceased was the owner of
Katariha estate in which besides other villages the villages specified below
were also included, and as he had no issue after his death Mst. Khem Kuer
became his heir as a Hindu widow of a joint family subject to Mitakshara school
of law. On her death we the executants who were entitled to become the absolute
owners of the estate of Shah Chiranji Lal according to Shastras became the
absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting
the estate from him. We obtained possession over everything and mutation of
names also were effected in our favour from the revenue court in respect of all
villages. Shah Chiranji Lal deceased had two sisters Mst. Ram Kuer and Mst.
Prem Kuer and he had a desire during his lifetime to give them some property
but owing to sudden death he could not himself fulfil his intention during his
lifetime. We the executants accept this fact as desired by him. Besides this
the mother of Shah Chiranji Lal also desires the same thing and it is our duty
to fulfil the same, and to give property to the Musammats aforesaid is
considered to be a pious and good act from the religious point of view. It is
our duty also to respect their wishes and fulfil the same, so that the people
of our caste and family might not think that after the death of Shah Chiranji
Lal his wishes remained unfulfilled. Hence for the reasons set forth above and
keeping in view the honour of the family and pious nature of the act we the
executants while in a sound state of body and mind ............... make a gift
of the following villages in favour of the donees." The donees
subsequently made a number of transfers of the property gifted to them and in
every respect the gift deeds were acted upon. Jwala Prasad, the presumptive
reversioner, died in the year 1980.
In suit No. 49 of 1928 (same as No. 89 of
1929) one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his
sons and they appealed against it to the High Court and also applied for
postponement of the preparation of the final decree. Stay was ordered on the
applicants furnishing security in the sum of Rs. 20,000 for future interest, costs,
etc. On the 26th May, 1930, in compliance with the order of the High Court a
security bond was executed by Shah Madho Lal and his sons as first party and by
Mst. Mohan Kuer as second party, containing the following recitals :-"After
the death of Mst. Khem Kuer Mst. Mohan Kuer was to become the owner of the
property with 803 limited interests as a Hindu mother, but she relinquished her
inheritance and did not agree to accept any property.
By means of a private arrangement, i.e., a
family arrangement, it was decided as between Shah Jwala Prasad and Shah Madho
Lal that they should be the owners of the property aforesaid in equal shares.
Documents in that connection were registered. Thus Shah Madho Lal executant
No.1 is the exclusive owner of the property given below which is being pledged
and hypothecated under this security bond. Executant No. 4, the second party,
has, after hearing and understanding the contents of this security bond, joined
in token of the veracity of the facts noted above so that in future she might
not be able to take objection to it and so that she might have no objection of
any sort to the security bond." (Executant No. 4 was Mst. Mohan Kuer).
On the 30th June, 1930, an affidavit bearing
the thumb impression of Mst. Mohan Kuer was filed in the same proceedings
containing the following statements :--"I solemnly affirm and say that
after the death of Mst.
Khem Kuer I did not agree to accept property
nor was I the heir and that I relinquished the entire property in favour of
Shah Jwala Prasad who became the owner of the entire property which was in
possession of Khem Kuer." The Subordinate Judge expressed the view that
the bond could not be held to have been executed by Mohan Kuer, she being a
pardanashin lady. He declined to accept the deed as sufficient and valid
security. On the 9th July, 1930, the High Court of Judicature at Allahabad
dismissed the application for stay of proceedings.
On the 15th July, 1931, Mohan Kuer instituted
suit No. 24 of 1931 in the court of the subordinate judge of Mathura against
the widows of Shah Jwala Prasad, Shah Madho Lal and his sons and a number of
transferees who had taken the property from these two reversioners. In para 8
of the plaint it was alleged 804 that the plaintiff was an old pardanashin
woman, was simple and of week intellect and illiterate, that on account of the
murder of Mst. Khem Kuer, she was very terror-stricken and was full of sorrow
and had no knowledge about her rights, that the third defendant and Jwala
Prasad who wanted to get the property took undue advantage of the plaintiff's
aforesaid condition and unlawfully entered into possession of the property left
by Chiranji Lal deceased and caused the mutation of names in their favour. In
para. 12 it was said that the defendants had got the thumb impressions of the
plaintiff on certain documents without telling her the contents of those
papers, simply by saying that a decree for a considerable amount had been
passed against the property and it was going to be sold in auction and that a
security bond must be furnished for saving the property. She prayed for a
decree for possession of the property in dispute in her favour against the
defendants. During the pendency of this suit Mohan Kuer died on the 5th
December, and on her death an attempt was made by the present plaintiffs to get
themselves impleaded as her legal representatives but on the 9th October 1934
it was held that the claim of Mst. Mohan Kuer was of a personal character and
the suit therefore could not proceed owing to abatement. It was, however, noted
that the legal representatives could file a separate suit, if so advised. It is
in consequence of this order that the suit out of which this appeal arises was
filed on the 30th April 1936.
It was contended by the learned
Attorney-General that the High Court on mere suspicions and unwarranted assumptions
had found the main issues in the case against the appellant and had erroneously
held that the compromise in suit No. 120 of 1915 was not binding on the 'plaintiffs
and that the surrender by Mohan Kuer was not valid surrender under Hindu law.
After hearing the learned counsel at considerable length, we did not think it
necessary to hear the respondent in reply, as in our opinion, the decision of
the High Court on both the points was right.
805 On the point of surrender, the learned
Attorney General contended that the widow effaced herself and put both the
reversioners in possession of the property half and half, and agreed to take
Rs. 3,000 from them for her maintenance and that the fact of surrender was
satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to
be mutated in the names of the reversioners and in allowing them to take
possession of it, also by the different statements made by her and from the
other documentary and oral evidence led in the case. Emphasis was laid on the
statements contained in the application (Exhibit M-31), on the statement of her
mukhtar Chaturbhuj, and on the recitals of the security bond and the affidavit,
Whether Mohan Kuer effaced herself and
surrendered the property, or whether she merely abandoned it, or whether she
entered into an arrangement for the division of the estate between herself, the
two reversioners and the daughters and their sons it is not possible to
predicate with any amount of certainty. No definite opinion can be offered on
the question whether whatever she did, she did voluntarily after fully
realizing the consequences of her act and whether as a pardanashin lady she
had.been properly advised on the matter or whether she merely acted on
Considerable doubt is cast on the story of
surrender set up by the defendants by the recitals in the two deeds of gift,
dated 22nd November, 1919, extracted above. The donors did not base their title
to the property either on the compromise of 1915 or on the surrender of Mohan
Kuer of the year 1919 or on the will; on the other hand, they said that they
had become owners of the property of Chiranji Lal by inheritance under Hindu
law after the death of his widow.
Both of them could not possibly inherit the
property half and half under Hindu law. Moreover, there is no clear or definite
evidence of either the time when the arrangement was made or of the terms
thereof. The evidence on these points is vague and 806 unsatisfactory. It is
completely wanting as to the arrangement under which Mohan Kuer became entitled
to receive Rs. 3,000 from them.
The conduct of Mohan Kuer and the various
statements by her no doubt do indicate that she cut off her connection with the
bulk of the estate of Chiranji Lal after the death of the widow and received a
sum of Rs. 3,000 from the reversioners and it is also clear that at her
instance the reversioners gave property of the value of Rs. 50,000 to her
daughters, but in the absence of any satisfactory evidence as to the precise
nature of this arrangement it is not possible to conclude that the widow after
fully realizing as to what she was doing and after proper advice effaced herself.
In this connection the allegations made by her in the suit of 1931 cannot be
altogether ruled out from consideration.
Assuming however for the sake of argument
that Mobart Kuer purported to relinquish her estate in favour of Jwala Prasad
and Madho Lal, in our opinion, the relinquishment connot in law operate as an
extinction of her title in the estate. The principle underlying the doctrine of
surrender is that it cannot possibly be made in favour of anybody except the
next heir of the husband. Vesting of the estate in the next reversioner takes
place under operation of law and it is not possible for the widow to say that
she is withdrawing herself from the husband's estate in order that it may vest
in somebody other than the next heir of the husband. It was held by this court
in Mummareddi Nagi Reddi v. Pitti Durairaja Naidu(1) that so far as the next
heir is concerned, there cannot be a surrender of the totality of the interest
which the widow had, if she actually directs that a portion of it should be held
or enjoyed by somebody else other than the husband's heirs and that the
position is not materially altered if the surrender is made in favour of the
next heir with whom a stranger is associated and the widow purports to.
relinquish the estate in order that it may vest in (1)  s.c.R. 655.
807 both of them. Though in the written
statements of the two sets of defendants different versions of the character of
the arrangement were pleaded, the learned Attorney-General before us stated
that the surrender by the widow was made both in favour of Jwala Prasad and
Madho Lal in equal moieties. Madho Lal admittedly was not the next reversioner
entitled to succeed to the estate. Thus the surrender of the totality of the
interest of the widow was not made in favour of the next heir. That being so,
it cannot operate as a valid surrender. If the surrender could be held a valid
one, then obviously succession that had opened out in 1919 and vested in the
next heirs could not be divested at the instance of the plaintiffs in the year
1932 on the death of Mohan Kuer, but in view of the invalidity of the surrender
it has to be held that succession to Shah Chiranji Lal's estate opened in 1932
and the plaintiffs as next heirs were entitled to take it.
The next question for consideration is
whether the compromise of 1915 entered into between Mohan Kuer as guardian of
Khem Kuer, and the two reversioners who had claimed the estate on the basis of
a will, was a bona fide family arrangement and thus binding on the ultimate
reversioners, the plaintiffs. It is well settled that when the estate of a
deceased Hindu vests in a female heir, a decree fairly and properly obtained
against her in regard to the estate is in the absence of fraud or collusion
binding on the reversionary heir, but the decree against the female holder must
have involved the decision of a question of title and not merely a question of
the widow's possession during her life (vide Venayeck Anundrow v. Luxumeebaee
This principle of res judicata is not limited
to decrees in suits contested and it is competent to a widow to enter into a
compromise in the course of a suit bona fide in the interest of the estate, and
not for' her personal advantage, and a decree passed on such compromise is
binding upon the reversioner. The question whether the transaction (1)
(1861-1863) 9 M.I.A. 520.
808 is a bona fide settlement of a disputed
right between the parties depends on the substance of the transaction and in
order that it may bind the estate it should be a prudent and reasonable act in
the circumstances of the case. As observed by their Lordships of the Privy
Council in Ramsumran Prasad v. Shyam Kumari (1), the true doctrine is laid down
in Mohendra Nath Biswas v. Shamsunnessa Khatun(2), decided in 1914, and it is
that a compromise made bona fide for the benefit of the estate and not for the
personal advantage of a limited owner will bind the reversioner quite as much
as a decree against her after contest.
That being so,we proceed to inquire whether
the compromise in the present case is one that can be supported on these
principles. In agreement with the High Court we are of the opinion that it
cannot be so supported. Mohan Kuer in entering into the compromise on behalf of
the minor widow never applied her mind to the interests of the ultimate
reversioners. She entered into it for her own personal benefit and for the
personal benefit of the minor widow in complete indifference as to what was to
happen to the estate after their respective deaths. Under this compromise these
two ladies got all the rights they had under Hindu law without sacrificing an
iota of their property and then they agreed that after their death the
plaintiffs in equal shares and after them their heirs shall be the owners of
the estate of Chiranji Lal. It did not matter in the least to the two ladies
what was to happen to the estate after their deaths and they were quite willing
to let this estate go to the plaintiffs in the suit, though one of them was a
remote reversioner. The compromise therefore was made in the interest of the
actual parties to the suit in complete disregard of the interests of the
The widows undoubtedly acted with
reasonableness and prudence so far as their personal interest was concerned but
further than that they did not see. The claim, of the two plaintiffs in Suit
No. 120 of 1916 was adverse to the interest of the (1) (1922) 49 I,A. 342. (2)
(1915) 21 C.L.J. 157.
809 reversion as they were claiming as
legatees under the will.
The widows while entering into the compromise
safeguarded their personal rights only and thus in entering into it they only
represented themselves and not the estate or the reversioners and surrendered
nothing out of their rights, and it cannot be said that in the true sense of
the term it was a bona fide settlement of disputed rights where each party gave
up something of its own rights to the other. The plaintiffs got an admission
from the widows in regard to the future succession of the estate that after
their deaths they would succeed though they were not heirs in accordance with
Hindu law. By this admission the widows lost nothing whatsoever. Those who lost
were the ultimate reversioners and their interest was not in the least either
considered or safeguarded. In these circumstances it seems to us that the
compromise cannot be held to be a bona fide settlement or family arrangement of
disputed rights and was entered into by Mohan Kuer for her personal advantage
and of the advantage of Khem Kuer. The present case is analogous to the
decision of the Privy Council in Imrit Konwur v. Roop Narain Singh (1). There
in a dispute between a person claiming to be an adopted son of the previous
owner and the widow and her daughters who would have title after her, the widow
gave up her daughters' rights in consideration of her receiving practically
unimpaired what she could. Their Lordships held that such a compromise could
not stand, as indeed it was not a compromise at all.
The learned Attorney-General laid
considerable emphasis on the decision of their Lordships of the Privy Council
in Mata Prasad v. Nageshar Sahai (2). In that case the widow admitted the right
of the reversioner under Act I of 1869 and agreed that succession will be
governed by that Act.
The reversioner agreed to let her remain in
possession and undertook that he would not alienate the property during that
period. The widow in that case was not constituted a full owner under Hindu law
and she did not get her full rights (1) (1880) 6 C.L.R. 76. (2) (1925) 52
I.A.393 810 under the compromise but as a matter of concession was allowed to
remain in possession by the reversioner and as a matter of fact she sacrificed
her rights to a considerable extent and did not act for her personal benefit at
all except to the limited extent mentioned above. In the circumstances of that
case it was held "that the compromise was a bona fide family settlement of
disputed claims and was binding on the reversioners. In the present case the
devolution of the property after the death of Chiranji Lal was agreed to be in
accordance with Hindu law and that being so, the further devolution of the
property after their death was no concern of the widows. That was a matter of
law. The ultimate reversioners were stabbed in the back by the widow and such a
compromise cannot be held to be binding on them.
A large number of cases were cited before us
in which compromises under different circumstances had been held to be binding
on the reversioners. We consider that it is wholly unnecessary to examine those
cases because the circumstances in which those compromises were made were quite
different from the circumstances of the present case.
Considering all the materials which were
placed before us, we hold in agreement with the High Court that the compromise
in the present case was neither prudent nor reasonable so far as it affected
the interests of the estate and that of the ultimate reversioners and that
being so, is not binding on the plaintiffs. For the reasons given above this appeal
fails and is dismissed with costs.
Civil Appeal No. 30 of 1951.
This is an appeal by one of the transferees
and arises out of the same suit out of which arises appeal No. 29 of 1951. On
the 13th June, 1928, Shah Madho Lal and his son Shah Madhusudan Lal executed a
sale deed (Exhibit M-13) in favour of the appellant for the sum of Rs. 21,000.
The transferee while adopting the defence taken by Madho Lal and by the heirs
of Jwala Prasad, pleaded that he was protected by the provisions of section 41
of the Transfer of Property Act.
811 The High Court held that in cases where a
person who has allowed another to occupy the position of an ostensible owner
has a limited estate, the rule of section 41 applies only during the lifetime
of the limited owner and is not available to protect transferees against the
claim of the reversioners. A number of authorities were cited in support of
this proposition. The learned counsel for the appellant was unable to displace
this proposition. It is quite clear that the plea of section 41 of the Transfer
of Property Act could only be raised against Mohan Kuer or her legal representatives
but is not available against the plaintiff, Mohan Kuer having acquired a
limited life estate. This contention is therefore rejected.
The learned counsel then contended that the
plaintiff Prem Kuer had relinquished her rights in favour of her sons in 1933
and she had no locus standi to maintain the suit or to appeal against the
decision of the trial judge as the title to the estate had vested in her sons.
The plaintiffs had alleged in para. 13 of the plaint that the relinquishment
was inoperative and void. The defendants did not dispute that allegation and it
is not open to them at this stage to take up the plea which they could have
taken in the trial court or in the appellate court. Even in the grounds of
appeal to this court the point was not taken. If the point was taken at the
proper stage the plaintiffs might well have proved that the relinquishment was
no longer operative or they might have amended the plaint and put it in proper
The learned counsel adopted the arguments of
the learned Attorney-General in the other appeal and for the reasons given
therein these points are decided against him. This appeal therefore also fails
and is dismissed with costs.
Agent for the appellant in Civil Appeal No.
29 of 1951:
S. S. Shukla.
Agent for the appellant in Civil Appeal No.
80 of 195 I:P. C. Agarwal.
Agent for the respondents in both: Rajinder