Bindeshri Tewari v. Ram Lakhan Tewari — 1941 DIGILAW 75 (ALL)

JUDGMENT Iqbal Ahmad, C.J. and Collister, J. - This is an appeal by the Defendants u/s 10 of the Letters Patent against the judgment of a learned Judge of this Court. The suit giving rise to the present appeal was brought by Ram Lakhan Tewari, Plaintiff Respondent, for possession of a certain zamindari share in village Jhakhai Chak Baldoha. 2. The relationship of the parties to the present litigation will appear from the following pedigree:- 3. The Plaintiffs case was that the property in dispute belonged to Sat Narain, who admittedly died in the year 1883, leaving his widow Mat. Sheoraji, who died in the year 1934. The Plaintiff alleged that Sat Narain died as a separated Hindu and that, on the death of Mst. Sheoraji in 1934, he (the Plaintiff), as the sole reversioner, became entitled to the properties of Sat Narain. The names of Defendants Nos. 1 to 5 were, after the death of Mst. Sheoraji, entered in the revenue papers as against a 2/3rds share of the zamindari that belonged to Sat Narain. The Plaintiff alleged that the Defendants had no right to the shares recorded in their names and that the Plaintiff was entitled to a decree for possession with respect to the same. 4. The Defendants contested the suit mainly on two grounds. Firstly, they pleaded that Sat Narain died as a member of a joint Hindu family with Kuber Nath, Sri Kant and the sons of Ram Govind and as such the branches of each of the three sons of Sheo Ratan Tewari became entitled to the property of Sat Narain by right of survivorship, and that Mat. Sheoraji had no right to the property and was only entitled to maintenance. They, therefore, contended that their names were rightly entered by the revenue Court as against 2/3rds of the property that was recorded in the name of Mst. Sheoraji. The trial Court as well as the lower appellate Court gave effect to this contention of the Defendants and held that Sat Narain died as a member of a joint Hindu family and not as a separated Hindu. Those Courts, therefore, held that the branches of each of the sons of Sheo Ratan were entitled to a l/3rd share in the property that was recorded in the name of Sheoraji. Those Courts, therefore, held that the branches of each of the sons of Sheo Ratan were entitled to a l/3rd share in the property that was recorded in the name of Sheoraji. On second appeal a learned Judge of this Court, however, disagreed with the finding of the Courts below on the point and held that Sat Narain died as a separated Hindu. The determination of the question as to whether Sat Narain was joint or separate at the time of his death depended on the interpretation of a number of documents, and ive agree with the learned Judge of this Court in holding that those documents establish the contention of the Plaintiff that Sat Narain was separate from the other descendants of Sheo Ratan at the time of his death. The Plaintiff's case that Sat Narain was the last male holder of the property in dispute must, therefore, be accepted as correct. 5. The Defendants, however, contested the Plaintiff's suit on another ground. They pleaded that a compromise entered into on the 5th March 1887, in circumstances to be presently mentioned, was in the nature of a family settlement and was binding on the parties to the present litigation. They alleged that in accordance with that compromise they were in possession of a 2/ 3rds share in the properties that belonged to Sat Narain. The trial Court as well as the lower appellate Court agreed with this contention of the Defendants also, and held that in view of the compromise of 1887, the Plaintiff had no right to possession of the properties in dispute. 6. On appeal by the Plaintiff, the learned Judge of this Court disagreed with the decision of the Courts below on the point and held that the compromise was not in the nature of a family settlement and that it was not binding on Ram Lakhan, the Plaintiff. The learned judge accordingly allowed the appeal of the Plaintiff and decreed his suit. 7. It is now a matter of admission that Sat Narain survived his father, Ram Charan, and that at the time of Sat Narain's death his mother, Musammat Maina and his widow, Mst. Sheoraji, were alive. It appears that during the life time of Sat Narain Mst. Maina's name was recorded against the zamin-dari share in dispute. 7. It is now a matter of admission that Sat Narain survived his father, Ram Charan, and that at the time of Sat Narain's death his mother, Musammat Maina and his widow, Mst. Sheoraji, were alive. It appears that during the life time of Sat Narain Mst. Maina's name was recorded against the zamin-dari share in dispute. After the death of Sat Narain, Sheoraji instituted a suit against Maina for a declaration that she as the widow of Sat Narain, was entitled to possession of the properties recorded in the name of Mst. Maina. Mst. Maina compromised that suit with Mst. Sheoraji and, acknowledging her title, relinquished all claims to the property. Kuber Nath, the father of the Plaintiff Respondent, then brought a suit for a "declaration of his future right under the Hindu law, i.e. after the death of" Mst. Maina with respect to the zamindari share in dispute in the present litigation. The suit was numbered as 862 of 1886 Originally Kuber Nath had impleaded as Defendants to the suit only Mst. Maina and Mst. Sheoraji but during the pendency of the suit Sri Kant, Ramdeo and Basdeo, the brother and nephews of Kuber Nath, applied u/s 32 of the Civil Procedure Code, then in force for being impleaded as Defendants, and their application was allowed. Sri Kant, Ramdeo, and Basdeo then filed written statements claiming to be equally entitled with Kuber Nath to a share in the properties recorded in the name of Mst. Maina. They alleged in their written statements that just as the Plaintiff claims the property in suit as an heir under the Hindu Law so does the Defendant also 8. They also asserted that the Plaintiff and they had equal shares in the estate of Ram Charan and Sat Narain Tewari. paragraph 3 of the written statement filed by them ran as follows: In case as alleged by the Plaintiff it be proved that the Plaintiff is joint and a decree is passed in his favour, a decree may be passed in favour of the Plaintiff subject to the rights and share "of the Defendant." The Plaintiff is entitled only to a 4 pie share and the Defendant also to that extent 9. The parties to the suit of 1886 entered into a compromise that was embodied in the decree passed in that suit. The parties to the suit of 1886 entered into a compromise that was embodied in the decree passed in that suit. The relevant portion of the compromise is as follows: A one anna share claimed shall remain in possession and occupation of me, Mussammat Sheoraji Tewari Defendant, After the death of me, Mussammat Sheoraji Tewarin Defendant out of the one anna shares aforesaid, 4 pies share shall go to me, Kuber Tewari Plaintiff, & pies share to me, Sri Kant Ram Tewari Defendant, and 4 pies, share to us, Basudeo Ram Tewari and Ram Deo Ram Tewari Defendant u/s 32 who shall enter into posession thereof........... A decree for future right in respect of 4 pies share may be passed in favour of the Plaintiff in terms of this compromise. 10. It is not disputed that the Plaintiff in the present litigation, who is the son of Kuber Nath, is in possession of a 4 pies share out of the share of Sat Narain, and the present dispute is only with respect to 8 pies share that is recorded in the name of the Defendants. 11. In dealing with the question whether the compromise of 1887 was operative as a family settlement the learned judge of this Court made the following observation:-- I have already set out the exact nature of the dispute between the parlies in litigation of 1886. In that suit the widow's estate was never disputed by the Plaintiffs and that they never set up any paramount title of their own in preference to that of the widow. All that they claimed was that the Defendant may not be allowed to prejudice their future rights by transferring the property to her daughter-in law. This they were entitled to do as expectant reversioners. That litigation in no way entitled the collaterals to partition the property then and there. That was not a matter arising out of the issues involved in the suit and was an independent matter affecting the collaterals inter Se and in no way concerned the widow. In my opinion, therefore, the partition of the property cannot be accepted as binding on the reversioners who in fact succeeded to the property upon the death of the widow. 12. In my opinion, therefore, the partition of the property cannot be accepted as binding on the reversioners who in fact succeeded to the property upon the death of the widow. 12. Observations to this effect were made by a Full Bench of this Court in the case of Rajpali Kunwar v. Surju Rai 1936 A.W. R 680 (F. B.), and the learned Judge in holding that the compromise of 1887 did not amount to a family settlement followed that decision. 13. We have considered the Full Bench case just referred to and consider that case has no application to the case before us. In the Full Bench case a Hindu died before 1926, leaving two widows, a step mother, a sister, sister's son, and three male collaterals, the latter being, as the law stood at the time, then the nearest reversioners to the estate. There were some disputes in the family which were settled in 1927 by an agreement under which a portion of the estate was given to the reversioners absolutely, and the remainder was left in possession of the widows for life. The sister was no party to the agreement. After the passing of Act II of 1929, which entitled a sister to succession, the sister brought a suit for a declaration that the agreement would not be binding on the actual reversioners to the estate. It was held by the Full Bench that the Plaintiff as sister had a reversionery right in the estate and that as under the agreement the then presumptive reversioners had virtually partitioned the estate for their own benefit, they were not acting in a representative capacity and the agreement would not be binding on the actual reversioners. 14. It would be noted that, at the time the compromise that formed the subject of consideration by the Full Bench was entered into, the sister had not the shadow of a right to the property of the deceased. The sister's right came into existence by the passing of Act II of 1929. The sister was no party to the compromise and none of the parties to that compromise could be said to represent her. It was, therefore, obvious that she could not be held bound by the compromise. In the case before us the facts are essentially different. The sister's right came into existence by the passing of Act II of 1929. The sister was no party to the compromise and none of the parties to that compromise could be said to represent her. It was, therefore, obvious that she could not be held bound by the compromise. In the case before us the facts are essentially different. All the persons who could have a claim either in praesentt or in future to the property of Sat Narain were parties to the litigation of 1886. Kuber Nath claimed to be entitled to the entire property on the death of Mst. Maina. Mst. Sheoraji claimed to be entitled to the possession of the property in dispute for her lifetime on the allegation that Sat Narain was the last male holder of the property. Sri Kant and the sons of Ram Govind claimed to be equally entitled with Kuber Nath to the property in dispute on the allegation that Sat Narain died as a member of a joint Hindu family. The questions at issue between the parties in that litigation were, therefore, (1) whether Ram Charan or Sat Narain was the last male holder of the property in dispute; and (2) whether Ram Charan or Sat Narain died as members of a joint Hindu family with Ruber Nath, Sri Kant and others? 15. So far as the latter question was concerned it was directly and substantially in issue between Ruber Nath on the one hand and Sri Rant, Ramdeo and Basdeo on the other, and on the determination of that question depended the answer to the question whether Ruber Nath alone, as alleged by him, would be solely entitled to the properties of Ram Charan or Sat Narain. It was in this state of controversy that the compromise was arrived at. Ail the adult male members of the family including the two widows were parties to that compromise. By the compromise an existing dispute that threatened the peace and harmony of the family was set at rest. By the compromise the shares of the branches of each of the three sons of Sheo Ratan were specified. In these circumstances there is no escape from the conclusion that the compromise of 1887 was in the nature of a family arrangement. By the compromise the shares of the branches of each of the three sons of Sheo Ratan were specified. In these circumstances there is no escape from the conclusion that the compromise of 1887 was in the nature of a family arrangement. Ram Lakhan, the Plaintiff-Respondent before us, is the son of Ruber Nath and Kuber Nath must, in the absence of evidence to the contrary, be presumed to have entered into the compromise as representing himself and his son Ram Lakhan. Ram Lakhan is, therefore, bound by the family settlement. 16. It was contended on behalf of the Plaintiff before the learned judge that the compromise not having been registered could not be admitted in evidence. This contention of the Plaintiff was overruled by the learned judge and in our judgment rightly. The compromise was with respect to the property in dispute in the suit and, as it was embodied in the decree, it was exempt from registration in view of the provisions of Section 17, sub clause (2) (vi) of the Registration Act which provides that: any decree or order of Court except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject matter of the suit are exempt from the operation of clauses (b) and (c) of sub-Section (1). 17. For the reasons given above we allow this appeal, set aside the decree of the learned judge of this Court and restore the decree of the lower appellate Court with costs in all Courts.