Mst. Champa Devi v. Madho Sharan Singh — 1980 DIGILAW 56 (PAT)

Judgment CHAUDARY SIA SARAN SINHA, J. 1. This is a first appeal by defendants 2nd Party against the judgment and decree of learned Additional Subordinate Judge III, Patna by which he decreed the suit instituted by Akesia Kuer, respondent Ist Party, which arose in the following circumstances. 2. Certain facts are admitted and they are these. One Bandhu Singh had four sons including Kirtam Singh, Deo Prasad Singh, husband of Most. Jit Kuer, was son of Kirtam Singh from his first wife Murti Devi. After the death of his first wife, Kirtam Singh took Baso Kuer as his second wife. All the, three brothers of Kirtam Singh died issueless in a state of jointness with Kirtam Singh and his son Deo Prasad Singh and the entire ancestral properties, once held by Bandhu Singh, passed on to Kirtam Singh and his son Deo Prasad Singh by the right of survivorship. 3. Cholera broke out in village Tarwan in the year 1924 and both Kirtam Singh and his son Deo Prasad Singh died of cholera within an interval of few days. Immediately after their death a controversy arose as to whether it was the father who predeceased the son or vice versa. This led to a criminal case alleging interpolation in the death register regarding the time of the death of Kirtam Singh, the result whereof is not known. There was a dispute at the trial stage of this suit as to who died first. The trial Court, however, found that Deo Prasad Singh predeceased Kirtam Singh and being confronted with the admission in the written statement filed by the appellants, they did not challenge this finding of the trial Court before this Court. It is thus, now, undisputed that Deo Prasad Singh and Kirtam Singh died on 9-8-1924 and 12-8-1924 respectively leaving behind their widows, Jit Kuer, initially impleaded as defendant No. 1 (defendant Ist Party), and Baso Kuer respectively. It is further undisputed that, while Jit Kuer died during the pendency of the suit in the trial Court before the hearing of the suit commenced, Baso Kuer died on 19.09.1957. 4. On 12.09.1934, Jit Kuer executed a Patta Thika (Ext. It is further undisputed that, while Jit Kuer died during the pendency of the suit in the trial Court before the hearing of the suit commenced, Baso Kuer died on 19.09.1957. 4. On 12.09.1934, Jit Kuer executed a Patta Thika (Ext. F-1) in favour of one Pragas Singh with respect to the milkiyat interest of mouza Tarwan (properties of Schedule IIIA to the plaint), obviously one of the properties held by Kirtam Singh, claiming exclusive title and possession, thereon as heir of Deo Prasad Singh alleging the death of Kirtam Singh prior to Deo Prasad Singh. This led Baso Kuer to institute Title Suit No. 316 of 1936 against Jit Kuer and the lessee Pragas Singh asserting in the plaint that Deo Prasad Singh having predeceased Kirtam Singh the entire properties of Kirtam Singh passed on to her on his death and thus the lessee wrongly dispossessed her from the properties in question. This suit was compromised on 1-3-1937 and a decree passed therein in terms of the compromise, Ext. 9 being the decree. While some of the properties once jointly held by Kirtam Singh and Deo Prasad Singh were left joint, the other properties were divided into two lots, one of which came in possession of Baso Kuer and the other in possession of Jit Kuer and it was declared that they would remain in possession of these properties during their lifetime without any right of alienation and that after the death of any of the parties, the property in her possession will pass on to the surviver. The Patta Thika deed (Ext. F-1) executed by Jit Kuer was allowed to remain intact and Baso Kuer was held entitled to realise half the rental from the lessee. 5. After the death of Baso Kuer on 9.09.1957 Jit Kuer executed a registered sale deed dated 13.05.1958 (Ext. D-1) in favour of the appellants, namely, defendants 2 to 5, which purported to transfer 10.84 1/2 acres of land for a consideration of Rs. 10,000.00. One day after, namely, on 15.05.1957, Jit Kuer also executed two registered deeds of gifts marked Exts. D-I and D-I (1) in favour of some of the other defendants of the suit in respect of 3.53 acres of land and 5.171/2 acres of land respectively. 10,000.00. One day after, namely, on 15.05.1957, Jit Kuer also executed two registered deeds of gifts marked Exts. D-I and D-I (1) in favour of some of the other defendants of the suit in respect of 3.53 acres of land and 5.171/2 acres of land respectively. The execution of these deeds led the plaintiff to institute the instant title suit in forma pauperis which was numbered as Title Suit No. 36 of 1960 for a declaration that the sale deed (Ext. D-1) and the register deed of gifts (Exts. D-I and D-I (1) ) were fraudulent, collusive and void documents without consideration and not binding on her. The plaintiff also prayed for decree for recovery of possession over those properties as also a decree for mense profits. The assertion made in the plaint, inter alia, was that the plaintiff was the daughter of Kirtam Singh from his first wife and she had two sons born of her husband, Jagdeo Rai, namely, Madho Saran Rai and Sukhdeo Saran Rai. Her further assertion was that Deo Prasad Singh having predeceased Kirtam Singh, after the death of Baso Kuer she became the exclusive heir to the entire properties of Kirtam Singh. It was lastly asserted that the compromise decree (Ext. 9) was not binding on her. 6. Defendants 2 to 5 (Appellants) contested the suit by filing one set of written statement and defendants 1 and 6 to 10 by filing another set of written statement. Both these two sets of defendants were at one in asserting that the plaintiff was not the daughter of Kirtam Singh. Rather, she was alleged to be the daughter of one Sugamber Singh of Tarwan though it war not disputed that she was married to Jagdeo Rai and she had two sons born of Jagdeo Rai, namely, Madho Saran Rai and Sukhdeo Saran Rai. The sale deed (Ext. D/1) and the deed of gifts (Exts. D-I and D-I (1) ) were said to be genuine and valid documents for consideration. According to defendants 2 to 5 the compromise decree was legal and valid, was in the nature of family settlement deed and the plaintiff had no right to challenge the same. Defendant-appellant Chamroo Singh son of Manbodh Singh also claimed to be the next reversioner of Kirtam Singh on the ground that Bandhu Singh, abovenamed, and Manbodh Singh were brothers. 7. Defendant-appellant Chamroo Singh son of Manbodh Singh also claimed to be the next reversioner of Kirtam Singh on the ground that Bandhu Singh, abovenamed, and Manbodh Singh were brothers. 7. On a consideration of the evidence, both oral and documentary adduced by the parties, the trial Court found, inter alia, that the plaintiff was the daughter of Kirtam Singh, that Bandhu Singh and Manbodh Singh were full brothers, that Deo Prasad Singh predeceased Kirtam Singh and that the sale deed and the deeds of gift in question were illegal and invalid documents, the former also being without consideration. With these findings the trial Court decreed the suit of the plaintiff and directed the defendants to deliver possession of the suit lands to the plaintiff within three months from the date of the decree. Defendants 2 to 5 have carried the matter in appeal. 8. In spite of various allegations and counter-allegations in the pleadings controversies between the parties before this Court centered round mainly on two points, namely, (1) whether the plaintiff Akasias Kuer was or was not the daughter of Kirtam Singh and (2) which of the two sub-sections, namely, sub-section (1) or sub-section (2) of Sec.14 of the Hindu Succession Act, 1956 , would apply to the instant case. 9. Coming to the question whether the plaintiff was or was not the daughter of Kirtam Singh, learned counsel for the appellants assailed this finding of the trial Court mainly on the ground that the trial Court had not attached due importance to the statements made in the compromise decree (Ext. 9), Ext. C-I, the sale deed dated 18.05.1958 executed by Chamroo Singh (D. W. 25), Ext. E-I, the deed of exchange dated 17-4-1928 executed by Pragas Singh, Ext. F-I the Patta Thika dated 12.09.1934 executed by Jit Kuer and Ext. C-I, the written statement dated 1.09.1935 filed by Pragas Singh in Title Suit No. 80 of 1935 which was sufficient to show that the plaintiff was not the daughter of Kirtam Singh. I have gone through those documents and the discussion of the trial Court regarding them and I am of the opinion that this contention has no merit. 10. Ext. I have gone through those documents and the discussion of the trial Court regarding them and I am of the opinion that this contention has no merit. 10. Ext. 9 shows that one of the reliefs sought for by Baso Kuer in Title Suit No. 316 of 1936 was for a declaration that Kirtam Singh died without any Aulad leaving the plaintiff (Baso Kuer) as his heir. The contention raised was that the term Aulad did not mean only male issue but meant any issue either male or female. The trial Court has observed, in para 18 of its judgment, that this word has been used in the sense of male issue and not in the sense of female issue as the existence or otherwise of female issue at the relevant time was immaterial. The statements made in the plaint might have thrown some light on the meaning of this term but the appellants did not bring on record the plaint of that title suit. Chamroo Singh (D. W. 25) who appears to have signed for Baso Kuer on the compromise petition, was making Pairvi in that suit on her behalf and had signed for her on the plaint as well, has not stated as to what was the intention behind the term Aulad. Even assuming that the term Aulad was used in the sense of both male and female issue, the possibility of Chamroo Singh (D. W. 25); who had his greediful eyes on the properties of Kirtam Singh had subsequently claimed to have purchased the same might have been instrumental in getting that term inserted therein against the existing fact. 11. Coming to Ext. C-I the self-serving statement made by Chamroo Singh (D. W. 25) in this deed cannot, in the facts and circumstances of this case, carry any weight. As found by the trial Court, which finding was not disputed before this Court, Chamroo Singh (D. W. 25) was the first cousin of Kirtam Singh and, on his own showing, he was looking after the affairs of Baso Kuer presumably because the plaintiff was married and was living in her Sasurali village Kauria at some distance from village Tarwan. This Chamroo Singh had succeeded in getting the sale deed (Ext. This Chamroo Singh had succeeded in getting the sale deed (Ext. D/1) executed by Jit Kuer in his favour as also in favour of the other appellants on 14.05.1958 after the death of Baso Kuer and, as contended, only a few days after that he executed this sale deed in order to create evidence. 12. Non-mention of the name of the plaintiff in the deed of exchange (Ext. E-I), executed by Pragas Singh, for the reasons stated in para 19 of the judgment of the trial Court, cannot be regarded as a circumstance in favour of the case of the defendants and, as rightly conceded by the learned counsel for the appellants, any statement made in Ext. E-I cannot be binding on the plaintiff. 13. The Patta Thika (Ext. F-1) stated inter alia, about Kirtam Singh having predeceased Deo Prasad Singh, a statement which is undisputedly wrong. This Indicates that Jit Kuer was in the group of Pragas Singh in whose favour this document was executed. It was only Baso Kuer and Jit Kuer who had raised competing claims to the properties of Kirtam Singh and any reference to the existence or otherwise of any daughter of Kirtam Singh was irrelevant. This apart, the possibility also was that non-mention of the name of the plaintiff in Ext. F-I might have been at the instance of Pragas Singh, similar would be the position in connection with the absence of the name of the plaintiff in the written statement filed by Jit Kuer in Ext. G-I. Ordinarily it cannot be expected that Jit Kuer, who wrongly claimed to have exclusive title to the entire property of Kirtam Singh, falsely alleging that Kirtam Singh predeceased her husband, would have created impediment in her way by admitting the existence of the plaintiff. 14. By filing a petition the appellants prayed for admitting the judgment dated 25.09.1973 passed in Title Suit No. 133/48 of 1967/1972 as additional evidence. This suit was instituted by one Chandeshwar Singh against Madho Saran Rai and others. Learned counsel for the respondents opposed this prayer on the ground that it was an irrelevant document in view of the provisions of Sec. 43 of the Evidence Act. This suit was instituted by one Chandeshwar Singh against Madho Saran Rai and others. Learned counsel for the respondents opposed this prayer on the ground that it was an irrelevant document in view of the provisions of Sec. 43 of the Evidence Act. The contention of the learned counsel for the appellants was that it was relevant under Sec.13 of the said Act and in support of his contention he relied on a decision of the Supreme Court reported in AIR 1954 SC 606 . Sital Das V/s. Sant Ram. In the facts and circumstances of this case, we decided to receive this judgment as additional evidence to be weighed and appraised for what it was worth. This judgment contains findings to the effect that the defendants failed to prove that Akasia Kuer (plaintiff) was the daughter of Sugamber Singh of Tarwan and that she (plaintiff) was not the daughter of Kirtam Singh. There is no finding in the judgment as to whose daughter actually she was though the probability has been indicated that she might be the daughter of Choa Singh which is not the case of any of the parties in the instant suit. Undisputedly, an appeal is pending against this judgment and as such it has not assumed finality. In such circumstances this judgment cannot take the case of the appellants any further than what they can be said to have succeeded in establishing in the instant suit on the evidence already adduced. 15. Beyond the documents, referred to above, the learned counsel for the appellants also referred to certain circumstances which according to him, negative the case of the plaintiff of her being the daughter of Kirtam Singh. Some of these circumstances have been dealt with in the judgment of the trial Court and they have not weighed with him and, in my opinion, rightly. Some other circumstances urged before this Court also meet the same fate. It is true that the plaintiff did not appear on the scene of litigation that arose between Baso Kuer and Jit Kuer but the reasons are obvious namely that the plaintiff being married was remaining in her Sasural and during the lifetime of Baso Kuer and Jit Kuer she was not entitled to any of the properties of Kirtam Singh. The difficulties facing a female in taking active part in litigation cannot also to be lost sight of. The difficulties facing a female in taking active part in litigation cannot also to be lost sight of. Lastly the said litigation culminated in compromise on the intervention of the well wishers of the parties and thus no occasion arose for the plaintiff to play any active part in the same. The non-filing of any horoscope by the plaintiff cannot also matter when she stated that there was no horoscope. It is true that she did not produce the letters said to have been written to her by Baso Kuer but this might be on account of those letters being not preserved. As the plaintiff was not in possession of any of the properties of Kirtam Singh, no adverse inference can be drawn against the plaintiffs case on account of her not meeting the Shradh expenses of Baso Kuer. 16. A large number of witnesses were examined on behalf of the parties in support of their respective cases. Although only the evidence of the plaintiff, Akasia Kuer (P. W. 16) and of Chamroo Singh, D. W. 25 (since dead) was specifically referred to by the learned counsel for the parties in course of argument before this Court, the evidence of some other witnesses was referred to in the written submissions made on their behalf. The parties came to Court with two cut and dried cases, the plaintiff alleging that she was the daughter of Kirtam Singh, the allegation of the appellants being that she was the daughter of one Sugamber Singh of village Tarwan, the residential village of Kirtam Singh also. Obviously the onus to prove that the plaintiff was the heir of Kirtam Singh on account of her being his daughter would lie squarely on her though in case of the defendants failing to prove their cases that she was the daughter of Sugamber Singh, it would merely be a circumstance which would lend colour to the case of the plaintiff. Certain principles have to be borne in mind while considering the relevancy of oral evidence on a point as the instant one. Certain principles have to be borne in mind while considering the relevancy of oral evidence on a point as the instant one. Sec. 50 of the Evidence Act states, inter alia, that when the court as to the relationship of one person to another has to form an opinion expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. Conduct as an external perceptible fact may be proved either by the person himself whose opinion is evidence or by some other person acquainted with the facts which express such opinion. In case of party factions in a village oral evidence of the witnesses has to be scrutinised with great care and caution and while doing so it has to be remembered that the views of the trial Court which had the occasion to mark the demeanour of the witnesses should not be lightly brushed aside unless there be cogent reasons to do so. 17. After discussing the oral evidence in detail the trial Court came to the conclusion that the evidence adduced on behalf of the defendants was unreliable and after referring to the certified copies of the depositions (Exts. 1, 1 (a) and 1 (b)) it accepted the oral evidence adduced on behalf of the plaintiff that the plaintiff was the daughter of Kirtam Singh. While dealing with the oral evidence of this plaintiff who ex- amined herself as P. W. 16 and her two sons, P. Ws. 15 and 17, the trial Court observed that from the demeanour and mode of the deposition of the plaintiff and her sons, he was fully, convinced that they were not telling lie. I have carefully scrutinised the oral evidence adduced in this case particularly of D. W. 1, D. W. 3, D. W. 4, D. W. 6, D. W. 7, D. W. 8, D. W. 9, D. W. 11, D. W. 13, D. W. 14, D. W. 15, D. W. 16, D. W. 17. I have carefully scrutinised the oral evidence adduced in this case particularly of D. W. 1, D. W. 3, D. W. 4, D. W. 6, D. W. 7, D. W. 8, D. W. 9, D. W. 11, D. W. 13, D. W. 14, D. W. 15, D. W. 16, D. W. 17. D. W. 18, D. W. 21, D. W. 22, D. W. 23, D. W. 24, D. W. 25, D. W. 28, D. W. 29, D. W. 30, D. W. 32, and D. W. 33 as also the evidence of P. W. 1, P. W. 2, P. W. 3, P. W. 4, P. W. 5, P. W. 6, P. W. 7, P. W. 8, P. W. 9, P. W. 10, P. W. 11, P. W. 13, P. W. 14, P. W. 15, P. W. 16, P. W. 17 and P. W. 18 and I see no reason to disagree with the views expressed by the trial Court regarding their evidence. While the evidence of most of the witnesses for the defendants do not conform to the requirements of Sec. 50 of the Evidence Act. The evidence of most of the witnesses for the plaintiffs conform to the said requirements. The evidence of some of the witnesses for the plaintiffs were sought to be discredited on the ground of their estimates about the age given out by them in course of their evidence but, as we are aware witnesses coming from villages can hardly be expected to be exact about the age of others when they are not sure of their own age. All persons attending the Barat Party may not be aware as to who performed the Kanyadan nor can such person be expected to know about all the relations of the parties to the marriage. P. W. 3 might be inimical with the appellants but on this ground alone his evidence should not be brushed aside though it should be scrutinised with great caution and should be accepted only when it finds corroboration. P. W. 6 might not have preserved the letter of invitation but Anant Pal father of Jagdeo, husband of the plaintiff, being his Bahnoi, he claimed to have attended the said marriage which is quite neutral. The evidence of P. W. 7 and the priest (P. W. 9) cannot be discredited merely on the ground of the non-existence of the gali. The evidence of P. W. 7 and the priest (P. W. 9) cannot be discredited merely on the ground of the non-existence of the gali. The evidence of P. Ws. 15, 16 and 17 was sought to be discredited on the ground that they were interested witnesses. Indeed they are interested witnesses and as such their evidence should be scrutinised with care and caution but their evidence cannot be thrown out merely on that ground if it is otherwise acceptable and trustworthy. An illiterate woman as P. W. 16 is, she might not have remembered the name of the father of Bandhu Singh, P. W. 18, no doubt, appears to be inimical towards defendant Chamroo Singh but his evidence stands corroborated by other independent witnesses. The trial court has assigned satisfactory reasons for discrediting the evidence of the witnesses for the defendants and it is not considered necessary to repeat them here. In spite of the undisputed position that Deo Prasad Singh predeceased Kirtam Singh, in their anxiety to support the case of the appellants some of the witnesses for the defendants 6 to 10 stated falsely about Kirtam Singh having predeceased Deo Prasad Singh which shows the extent to which they can go in supporting the case of the defendants. 18. Coming to the certified copies of the depositions (Exts. 1, 1 (a) and (b), it was stated therein that Sugamber Singh died issueless thereby negativing the case of the appellants that the plaintiff was the daughter of Sugamber Singh. Even assuming that they do not exactly conform to the requirements of S. 32 (5) of the Evidence Act and that they should, therefore, be excluded out of consideration, there remains the other evidence adduced on behalf of the respondents which is quite satisfactory and reliable. Thus, on a close analysis of the evidence adduced by the parties, I hold that the plaintiff has succeeded in proving that she is the daughter of Kirtam Singh and that there is no satisfactory or reliable evidence to show that she is the daughter of Sugamber Singh and I accordingly confirm the finding of the trial court on this point. 19. Coming to the second point, undisputedly, Kirtam Singh possessed ancestral properties. Deo Prasad Singh died in a state of jointness with Kirtam Singh leaving behind his widow Jit Kuer. 19. Coming to the second point, undisputedly, Kirtam Singh possessed ancestral properties. Deo Prasad Singh died in a state of jointness with Kirtam Singh leaving behind his widow Jit Kuer. In such circumstances, Jit Kuer was entitled to be maintained out of the properties left by Kirtam Singh and her deceased husband in whosesoever hands the property might pass. Deo Prasad Singh might have predeceased Kirtam Singh but Jit Kuer raised a claim to the properties of Kirtam Singh and executed the Patta Thika (Ext. F-I) which led Baso Kuer to institute the title suit, abovementioned. This suit was compromised in which the Patta Thika executed by Jit Kuer was allowed to remain intact and the two ladies were allotted separate properties, some properties remaining joint, Though it was mentioned in the compromise that they were to enjoy the property only during their lifetime and that on the death of any of them the properties would come in possession of the other and further that they shall have no right of alienating the property, undisputedly, the two ladies came and continued in possession of these properties till the coming into force of the Hindu Succession Act, 1956 , Sub-section (1) of S.14 of the Hindu Succession Act, 1956 lays down that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. There is an explanation to this sub-section which states that the term "property" includes, inter alia, both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. Sub-section (2) of Sec.14 of the Hindu Succession Act, 1956 is more in the nature of a proviso or explanation to sub-section (1) and states that nothing contained in sub-section (1) shall apply to any property required by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument of the decree, order or award prescribe a restricted estate in such property. In the context of the scheme of the Act which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in the Hindu society, sub-section (2) of Sec.14 must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-sec. (1) and it cannot be interpreted in a manner which, as observed by their Lordships of the Supreme Court in the case of V. Tulasarmma V/s. Sesha Reddi reported in AIR 1977 SC 1944 , would rob sub-sec. (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-sec. (1). Their Lordships of the Supreme Court observed in this case that sub-section (2) of Sec.14 must, therefore, be read in the context of subsection (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under the documents mentioned therein, which prescribe a restricted property. Their Lordships of the Supreme Court further observed that where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. The words any property possessed by a female Hindu whether acquired before or after the commencement of this Act in sub-section (1) of Sec.14 and the word acquired in sub-section (2) of Sec.14 have to be significantly noted. The words any property possessed by a female Hindu whether acquired before or after the commencement of this Act in sub-section (1) of Sec.14 and the word acquired in sub-section (2) of Sec.14 have to be significantly noted. The word acquired as used in sub-section (2) of Sec.14 has to be given a restricted meaning and would cover only those cases where the Hindu female had no interest previously in the property and it was for the first time by virtue of the gift or Will or other modes mentioned in the sub-section that the property was acquired by her. Jit Kuer alleged interpolation in the Death Register and claimed to be the sole heir as according to her Kirtam Singh predeceased her husband. Baso Kuer put forward a different claim namely that Deo Prasad Singh predeceased Kirtam Singh. A litigation followed on the execution of the Patta Thika (Ext. F-I). Well wishers intervened and the matter ended in compromise in which the Patta Thika (Ext. F-I) was allowed to remain intact. This apart, Jit Kuer was entitled to maintenance being the widow of a predeceased son. In the facts and circumstances of this case, it cannot be held that the property mentioned in the compromise decree (Ext. 9), was acquired by lit Kuer for the first time as a grant without any pre-existing right. It appears that the trial court, in para 38 of its judgment, has not correctly appreciated the provisions of Sec.14 of the Hindu Succession Act and has thus fallen into error. In the facts and circumstances of this case, negativing the contention raised by the learned counsel for the respondents that sub-sec. (2) of Sec.14 of the Hindu Succession Act would apply and upholding the contention of the learned counsel for the respondents, I hold that the provisions of subsection (1) of Sec.14 shall apply to the instant case. This being the position, on the coming into force of the Hindu Succession Act, 1956 , Jit Kuer will hold properties allotted to her in the compromise decree (Ext. 1) as full and absolute owner. As stated above, Baso Kuer died on 9.09.1957 after coming into force of the Hindu Succession Act. This being the position. Baso Kuer will also hold the properties allotted to her in the compromise decree (Ext. 9) as full and absolute owner. 20. 1) as full and absolute owner. As stated above, Baso Kuer died on 9.09.1957 after coming into force of the Hindu Succession Act. This being the position. Baso Kuer will also hold the properties allotted to her in the compromise decree (Ext. 9) as full and absolute owner. 20. The next question that arises is as to what would happen to the properties of Baso Kuer allotted to her in the compromise decree (Ext. 9) after her death. Baso Kuer, undisputedly, died without any issue, male or female, leaving beldind Jit Kuer and, as found above, the plaintiff also. The contention of the learned counsel for the appellants that in such a situation the properties of Baso Kuer would pass on to both Jit Kuer and the plaintiff under the provisions of Hindu Succession Act was not disputed on behalf of the respondents though the learned counsel for the respondents disputed unsuccessfully, about the plaintiff being the daughter of Kirtam Singh. This being the position, the properties of Baso Kuer as allotted to her in the compromise decree (Ext. 9) would devolve simultaneously upon Jit Kuer as also the plaintiff in equal shares. The compromise decree states, inter alia, that the compromise arrived at between Baso Kuer and Jit Kuer was on the intervention of their well-wishers after fully realising the loss and benefits which indicates that this compromise decree was in the nature of a family arrangement. Though the genuineness or the validity of the compromise decree (Ext. 9) was not challenged on behalf of the respondents it was contended that it was not binding on the plaintiff. In the facts and circumstances of this case, this contention has to be negatived. 21. It is undisputed that the two deeds of gifts (Exts. D-I and D-I (1) were executed by Jit Kuer in respect of the properties allotted to her in the compromise decree. After the decision in the suit holding these deeds of gifts as illegal and invalid, the donees, undisputedly, entered into a compromise with the plaintiff disclaiming any interest in these properties and this is why they did not come up in appeal. Jit Kuer being entitled to -/8./- annas interest in the properties allotted to Baso Kuer in the compromise decree and the plaintiff being not a competent person to challenge the passing of consideration thereunder, the sale deed (Ext. Jit Kuer being entitled to -/8./- annas interest in the properties allotted to Baso Kuer in the compromise decree and the plaintiff being not a competent person to challenge the passing of consideration thereunder, the sale deed (Ext. D/I), though voidable at the instance of the plaintiff to the extent of her -/8/- annas interest in the properties conveyed, cannot but be regarded as genuine and valid document to the extent of the other -/8/- annas interest in the properties conveyed thereunder and the plaintiff is held entitled to a declaration accordingly. There being no evidence of partition of the properties allotted to Baso Kuer in the compromise decree, the plaintiff cannot be held entitled to a decree for recovery of possession even in respect of -/8/- annas interest in the said properties to which she has been held to be entitled though she is held entitled to get her -/8/- annas interest therein partitioned in accordance with law. The claim for mense profits in the cross-objection is rejected as not pressed with option to the plaintiff to claim the same if advised, in accordance with law in a properly constituted suit. 22. The result is that the appeal partly succeeds and the plaintiffs suit is decreed in part to the extent indicated above. Subject to the observations made above, the cross-objection filed on behalf of the appellants is also dismissed. In the facts and circumstances of this case there will be no order as to costs and the parties are directed to bear their own costs all throughout. The judgment and decree of the trial court are modified accordingly. HARI LAL AGRAWAL, J. 23 I agree.