Patna High Court
Musammat Bhagwati Kuer vs Babu Jagdam Sahay And Babu Ram Prasad And ... on 21 June, 1921
Equivalent citations: 62IND. CAS.933, AIR 1921 PATNA 260
JUDGMENT Das, J.
1. This appeal arises out of a suit instituted by the principal respondent for recovery of possession of certain properties jointly with his brother, who was sited in the action as defendant No. 4. The material fasts are as follows:--One Girwar Narain, a practising Mukhtar in the District Court, died on the 20th February 1892, leaving him surviving a daughter, Fateh Koer since deceased, and two grandsons by a predeceased daughter, Pratap Narain, defendant No. 4, and the plaintiff, Jagdam Sahay. Both Pratap Narain and Jagdam Sahay were minors at the date of the death of Girwar Narain. Girwar Narain also left behind him Ram Prashadand Sham Prashad, the sons of Sadhunarain, the predeceased brother of Girwar Narain. Ram Prashad is defendant No. 1, and his sons are defendants Nos. 5 to 8. Sham Prashad is dead, and his grandsons by a daughter are defendants Nos. 11 to 14.
2. It appears that on the death of Girwar Narain, a contention arose between Ram Prashad and Sham Prashad on the one hand and Musammat Fateh Koer on the other, as to the title to the properties which stood recorded in the name of Girwar Narain. Ram Prashad and Sham Prashad took up the position that they together with Girwar Narain formed members of a joint Mitakshara family, of which Girwar Narain was the managing member, and that the properties which stood in the name of Girwar Narain were joint family properties and had been acquired out of joint family funds, and that consequently they were entitled to take these properties by survivorship to the exclusion of Fateh Koer. Fateh Koer on the other hand maintained that the properties were the self-acquired properties of Girwar Narain and that she was entitled to succeed to them to the exclusion of Ram Prashad and Sham Prashad.
3. It will be noticed that Jagdam Sahay and Partap Narain had, in no view of the case, any interest in the disputed properties, either vested or contingent. If Girwar Narain was joint with Ram Prashad and Sham Prashad as the latter alleged, then obviously Jagdam Sahay and Pratap Narain as the sons of the daughter of Girwar Narain could not claim to have any interest in the properties which stood in the name of Girwar Narain. If, on the other hand, the properties were the self-acquisitions of Girwar Narain as Fateh Koer alleged, then, so long as Fateh Koer was alive, Jagdam Sahay and Pratap Narain could not put forward any claim to the properties which were of Girwar Narain. Although they had no sort of interest or title in the disputed properties, still their father Naurangi Lal became a party to the arrangement which is next to be stated, and secured a substantial benefit in the disputed properties for his sons.
4. On the 22nd September 1892, the parties composed their differences and partitioned the properties amongst themselves by a deed of partition signed by Ram Prashad and Sham Prashad) of the first party, Musammat Fateh Kuer, of the second party, and by Naurangi Lal, the guardian of Pratap Narain and Jagdam Sahay, of the third party. It is not necessary, at this stage, to deal with the deed of partition at great length. It is sufficient to state that the parties allotted the properties set out in Schedules 1 and 2 to Ram Prashad and Sham Prashad those set out in Schedule 3 to Musammat Fateh Koer absolutely those set out in Schedule 4 to Pratap Narain and Jagdam Sahay and those set out in Schedule 5 to all the parties jointly in certain specific shares. There is no reason to doubt that the parties, so far as they were able, gave effect to the deed of partition and that Naurangi Lal and Pratap Narain, who attained his majority in 1893, dealt with the properties which were allotted to them on the footing that the partition, so far as they were concerned, was a valid transaction. The plaintiff, however, did not attain his majority till 1900, and I do not think that it can be suggested that, apart from what may be inferred from Exhibits K series and from Exhibits Z7 to Z10, he in any way affirmed the transaction of the 22nd September 1892. So far as Musammat Fateh Koer is concerned, she executed a mokarrari lease, in respect of the properties which were allotted to her and which are set forth in Schedule 1 annexed to the plaint, in favour of the appellant in the benani name of her servant, Inderjit Mahton. This last-mentioned transaction took place on the 24th August 1834. The appellant was cited as the second defendant in the action, and her benamidar, Inderjit Mahton, as the third defendant.
5. Fateh Koer died on the 17th December 1906, and on her death, the dispute between the parties broke out afresh. It will be noticed that Partap Narain and Jagdam Sahay, who had no sort of interest in the disputed properties on the death of Girwar Narain, acquired a title to these properties on the death of Fateh Koer, if the properties were in fact the self acquired properties of Girwar Narain. It is on this footing that, on the 5th August 1916, the plaintiff commenced the present action. His case in the plaint is that his grandfather Girwar Narain was separate from Ram Prashad and Sham Prashad and that the disputed properties, set forth in Schedules 1 and 2 of the plaint, were the self-acquired properties of Girwar Narain to which he along with his brother, Partap Narain, became entitled to succeed on the death of Fateh Koer, the daughter of Girwar Narain. The properties set forth in Schedule 1 are those which were allotted to Fateh Koer absolutely and which Fateh Koer demised in favour of the appellant. The properties set forth in Schedule 2 are those which were allotted to Ram Prashad and Sham Prashad, I ought to mention that with reference to the properties set forth in Schedule 1, there was on the death of Fateh Koer a three-cornered fight in the Land Registration Department between Gobind Koer, the daughter of Fateh Koer, Partap Narain and Jagdam Sahay, who were objectors No. 1, and Ram Prashad and Sham Prashad, who were objectors No. 2. Gobind Koer subsequently withdrew her claim, and the Revenue Authorities, in a straight contest between Partap Narain and Jagdam Sahai on one side and Ram Prashad and Sham Prashad on the other side, decided in favour of Rata Prashad and Sham Prashad. As a result of this decision, Ram Prashad and Sham Prashad became entitled to receive the rent reserved in the mokarrari lease from the appellant.
6. The suit was contested by the defendants on two grounds:--First, on the ground that Girwar Narain was joint with Ram Prashad and Sham Prashad and that consequently the plaintiff had no cause of action, and secondly on the ground that the partition of the 22nd September 1892 operated as a family settlement and completely bound the interest of the plaintiff. During the pendency of the suit, the plaintiff entered into a compromise with Ram Prashad and his sons, and by this compromise, in consideration of Rs. 700 agreed to be paid by Ram Prashad and his sons to the plaintiff, the plaintiff relinquished his claim in respect of the properties set forth in Schedule 2. So far as the properties set forth in Schedule 1 are concerned, the compromise petition provided as follows: "It may be noted that the result of this suit will not be prejudicial to the interest of either the plaintiff or the defendants Nos. 1 and 5 to 8 in respect of Mouza Shearampur mentioned in the Schedule No. 1 of the plaint of this suit." We are, therefore, concerned in this appeal with the properties set forth in Schedule 1, as to which the appellant claims title by virtue of mokarrari settlement made in her favour by Fateh Koer. The learned Subordinate Judge, in a careful judgment, has discussed all the material issues that arise in this action and has given the plaintiff a decree as against the appellant in respect of the properties set forth in Schedule 1 and as against defendants Nos. 1 and 5 to 8 in terms of the compromise.
7. The first point taken on behalf of the appellant is that, as the question of title has not been determined as between the plaintiff on the one hand and Ram Prashad and his sons on the other hand, the learned Subordinate Judge was not competent to pass a decree as against the appellant. The argument, in my opinion, is not entitled to succeed. The agreement between the plaintiff and the defendants Nos. 1 and 5 to 8 cannot affect the appellant one way or the other. Just as she could not be prejudiced by that agreement, so she cannot take advantage of that agreement. The only effect of the agreement was to dismiss defendants Nos. 1 and 5 to 8 from the action, so far as the action was for recovery of possession of the properties set forth in Schedule 1, I do not say that the compromise in terms provided for the dismissal of these defendants from the action; but that was the substance of the compromise. The solution of the problem depends on the question whether the plaintiff could have maintained ejectment against the appellant without making defendants Nos. 1 and 5 to 8 parties to his action. If he could, then there can be no substance in the argument of the learned Vakil that because the plaintiff and defendants Nos. 2 and 5 to 8 have agreed that the result of this suit shall not affect the interest of either of them in the properties set forth in Schedule 2, he is incompetent to maintain ejectment against her.
8. Precisely the same question was raised in Kashi v. Sadashiv Sakharam Shet 21 B. 229 : 11 Ind. Dec. (N.S.) 154. In that case the plaintiffs sued to recover possession of certain Crown lands, alleging that their predecessor had obtained them from Government in 1845. The defendants claimed to hold the lands under a lease by the Government in 1885. The defendants contended that the Government was a necessary party to the action and that, in its absence, the suit could not proceed. Farran, C.J., in rejecting the contention put forward on behalf of the defendants, observed as follows:--"The owner of land is entitled to maintain a suit for its recovery from the person in possession without regard to the question how he (the owner) has been deprived of possession or how the present possessor has obtained it. The cause of action is the wrongful retention of the land by the defendants from its owners...We consider that if the plaintiff in an ejectment suit can make out a legal title to land, he is entitled to maintain a suit against the person in actual juridical possession of such land for its recovery without making the person under whom the latter claims to hold a party to the suit." And then the learned Chief Justice added: "The most that can be said is that if Government be made a party, the questions at issue between the plaintiffs and Government can be effectually tried and determined in this suit, but the plaintiffs do not ask that those questions shall be determined in this suit, and Government cannot be affected by the result of this suit, so that those questions may safely be left to be determined, if necessary, in future litigation." In my opinion, the passages cited from the judgment of Farran, C.J., completely answer the argument of the learned Vakil which proceeded on a misconception of the nature of a suit in ejectment. The plaintiff in an ejectment suit must, of course, prove his title; but it does not follow that he must prove his title in the presence of the person interested to deny his title. ''The cause of action," as Farran, C.J., said, "is the wrongful retention of the land by the defendants from its owners," not the denial of the plaintiff's title by a third party. It was, of course, open to the Court to say that, since all the parties were before it, it was far more advantageous that all the questions as between all the parties should be finally determined in their presence; but that is not the course which the Court adopted. The result is that defendants Nos. 1 and 5 to 8 cannot be affected by the result of the suit, and that is what the parties have said in their compromise petition. I must overrule the argument of the learned Vakil for the appellant on this point.
9. It was next argued that the plaintiff has not proved his title; in other words, that be has not established that Girwar Narain was separate from Ram Prashad and Sham Prashad or that the properties in dispute were the self-acquisitions of Girwar Narain. The judgment of the learned Subordinate Judge on this point leaves nothing to be desired, and the arguments at the Bar have not convinced me that the view taken by the learned Subordinate Judge is erroneous. It has, I think, been established that there was no nucleus of joint family properties out of which the disputed properties could have been acquired. It has also been established that Girwar Narain had a good income from his profession and that be carried on a money-lending business. There are in addition various documents which shew that Girwar Narain asserted his sole and exclusive title to these properties:--Exhibits 2, 3, 4 and 5. Then there is ample oral evidence which supports the case of the plaintiff. As against this mass of evidence, both documentary and oral, there is the deed of partition dated the 22nd September 1892 on which the appellant strongly relies. That transaction, no doubt, rests on the hypothesis that Girwar Narain was joint with Ram Prashad and Sham Prashad, but I cannot regard any statement made by Naurangi Lal as establishing that Girwar Narain was in fast joint with Ram Prashad and Sham Prashad. I hold that the plaintiff has conclusively established that Girwar Narain was separate from Bam Prashad and Sham Prashad and that the properties in dispute belonged exclusively to Girwar Narain.
10. I some to the last point that has been argued on behalf of the appellant, and that is that the settlement of the 22nd September 1892 is binding on the plaintiff and that he cannot now be allowed to set up his right as against the settlement. It is undisputed that wherever doubts and disputes have arisen with regard to the rights of the different members of the same family, and fair compromises have been entered into to preserve the harmony and affection, or to save the honour of the family, those compromises will be sustained by the Court, although perhaps resting upon grounds which would not have been considered satisfactory if the transaction had occurred between strangers. Westby v. Weitby (1842) 2 Dr. & War 502 : 1 Con. & L. 537 : 59 R.R. 795. But it must, I think, be established that the right compromised could at least have formed the subject-matter of a claim, though a doubtful claim. As was said in the leading case of Stapilton v. Stapilton (1739) 1 Wh. & T.L.C. (7th Ed.) 223 : I Atk. 2 : 26 E.R. 1, "an agreement entered into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties; for the right must always be on one side, or the other; and, therefore, the compromise of a doubtful right is a sufficient foundation of an agreement." It must follow from this statement of the law that, where the agreement is set up against the right the agreement will prevail over the right only if it is established that at the time when the agreement was entered into, the person sought to be bound by the agreement on his own allegations, however false those allegations might have been, had a right, or a doubtful right, which could form the subject-matter of a claim, and which could, therefore, be compromised.
11. The agreement which is set up in the present case as against the right of the plaintiff was entered into by the agnatic relations of Girwar Narain, who claimed the disputed properties as against the estate of Girwar Narain which was, at that time, represented by Fateh Koer, by Fateh Koer herself, and by the reversionary heirs of Girwar Narain, who were represented in the transaction by their father and natural guardian, Naurangi Lal. There are two points that at once arise for consideration; first, whether the reversionary heirs could enter into a valid agreement in regard to the estate which they had, or hoped to have, in the disputed properties, and secondly, whether the holder of the limited interest could bind the reversionary heirs by the agreement entered into by her. These two aspects of the question must be considered separately, for the conisderations which apply to the one do not apply to the other. To consider them together is to invite confusion.
12. Now I do not think that there can be any doubt that the reversionary heir cannot enter into a valid agreement in regard to such interest as he has in the estate of the person whose reversionary heir he claims to be. To take the present case, Girwar Narain was either joint with, or separate from Ram Prashad and Sham Prashad. If he was joint with Ram Prashad and Sham Prashad, then clearly the plaintiff and his brother had no sort of interest in the properties which stood in the name of Girwar Narain. If he was separate from Ram Prashad and Sham Prashad, then equally clearly the plaintiff and his brother would have no interest in the estate of Girwar Narain, so long as Fateh Koer was alive. It is true that, on the hypothesis that Girwar was separate from his agnatic relations, the plaintiff and his brother would be considered to be the reversionary heirs of Girwar. But what is the interest of a reversionary heir? It is merely a possibility of succession, spes successioms. Such a possibility gives no interest to the reversionary heir in the estate of the deceased, present or future, vested or contingent. It is a bare or a naked possibility, which could not form the subject- matter of a claim. As the plaintiff and his brother, at the time when they, through their father, entered into the agreement, did not, on their own allegations, have a right, or even a doubtful right, which could form the subject-matter of a claim, I am of opinion that on principle they could not deal with such possibility as they had of succeeding to the estate of Girwar Narain.
13. The case of the holder of a limited interest stands on a different footing. The whole estate, for the time being, vests in her, absolutely for some purposes, though in some respects for a qualified interest. As the Judicial Committee said in the celebrated case of Katama Natchier v. Rajah of Shivagunga 9 M.I.A. 539 at p. 604 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 (P.C.): "The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindu widow; and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow." Their Lordships were dealing with the case of a decree by which the reversionary heirs were sought to be bound, but I am of opinion that a compromise of a doubtful claim by the holder of a limited interest stands exactly on the same footing and binds the reversionary heir; if it is established that the compromise was a fair and an honest one and that such holder entered into the transaction as representing the estate and for the protection of the estate, and not as representing herself and for her own protection. It is the duty of the limited owner to conserve the estate which for the time being vests in such limited owner. An alienation by such owner without any consideration or for a consideration which enures for the benefit, not of the estate, but of such owner, does not bind the reversionary heir; but a compromise of a doubtful claim binds the reversioner, if by such compromise the limited owner secures certain benefit for the estate, and the compromise appears to be a fair and a bona fide one.
14. The first aspect of the problem is illustrated by the case of Amrit Narayan v. Gaya Singh 44 Ind. Cas. 408 : 27 C.L.J. 296 : 23 M.L.T. 192 : 22 C.W.N. 409 : 34 M.L.J. 298 : 4 P.L.W. 121 : 16 A.L.T. 265 : (1918) M.W.N, 306 : 7 L.W. 181 : 20 Bom. L.R. 546 : 45 C. 590 : 45 I.A. 35 (P.C.). The facts were as follows:--One Jhaman Singh died, leaving a widow Radha Koer, a daughter Kar Koer, and her son Amrit Narain. On the death of Jhaman, his widow Radha Koer applied for registration of her name in the Collector's records. This was opposed by some of Jhaman's agnatic male relations, but, in spite of such objections, her tame was duly recorded in the Collector's records.
15. On the death of Radha Koer, quarrel broke out afresh between the agnatic relations and Kar Koer, the daughter of Radha Koer. The disputes were referred to the arbitration of certain persons, her husband Rajender purporting to act for her. Before the arbitrators had taken any action in the matter, a compromise was arrived at, in which Rajender purported to act both for her and her infant son, Amrit Narayan. Under this compromise, Kar Koer abandoned, in favour of the agnates, all right to the immoveable property of her father, receiving on her part, besides some moveable properties, two small fractional shares in certain properties which stood in her and in her mother's name. As the Judicial Committee said, the effect of the arrangement was to extinguish completely the reversionary interest of the appellant in his grandfather's estate." The arbitrators made an award in accordance with the compromise, which was upheld first by the District Court and then by the High Court.
16. On the death of Kar Koer, the appellant, the son of Kar Koer, commenced an action for the recovery of possession of the properties which belonged to his grandfather. It was not disputed before the Judicial Committee that Jhaman Singh was separate from his agnates, so that, but for the compromise, the plaintiff, as his reversionary heir, would be entitled to succeed in the action. But it was strongly contended that the plaintiff was bound by the compromise in which he was represented by his father and that he could not put forward his right as against the compromise. With reference to this argumerit, the Judicial Committee said as follows:
Their Lordships are unable to concur in the propositions on which the learned Judges of the High Court have based their judgment. With respect, in proceeding to consider whether Rajender Singh, the plaintiff's father, bad power to refer the matter on behalf of his minor son to arbitration, they seem to have misconceived the legal position of the infant under the Hindu Law. Evidently they thought he had a right which could form the subject of bargain. This is an obvious mistake; a Hindu reversioner has no right or interest in prsesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is mere spes successions. His guardian, if he happens to be a minor, cannot bargain with it on his behalf or bind him by any contractual engagement in respect thereto, Rajender's action, therefore, in referring to arbitration any matter connected with his sons' reversionary interest was null and void.
17. The case, in my opinion, is directly in point. On the hypothesis that Girwar Narain was separate from Ram Prashad and Sham Prashad, the plaintiff, at the date of the compromise, was a reversionary heir, and had accordingly nothing to assign or to relinquish. He had merely a spes successionis, and his guardian could not bargain with it on his behalf or bind him by any contractual engagement in respect thereto. Nor does the fact that his father received a benefit under the agreement make any difference on principle. If it does, then clearly the guardian of the reversionary heir can bind the reversionary heir by a contractual engagement in respect to his spes successionis, a proposition to which the Lords of the Judicial Committee did not assent.
18. The case of Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 (P.C.), on which the appellant strongly relied, illustrates the other aspect of the problem. In order to understand that case, it will be necessary to remember the following pedigree of the family:
RAJAH RATAN SINGH, died September 1851 = RAJ KUNWAR (widow, died 1858.
|
______________________________________________________________
| |
Daulat Singh, Daughter,
died January 1861 = |
Sen Kunwar Khairati Lal,
(widow, died 1857, |
| |
_____________________ Defdts Applts.
| | (who were transferees
Chattar Mewa from Khairati Lal or
Kunwar, Kunwar, his heirs,)
(daughter) (daughter)
|
Sons,
Plaintiffs-
Respondents.
19. The facts were these: Rajah Ratan Singh and his son Daulat Singh were members of a joint Mitakshara family and were joint tenants in respect of the properties in dispute. Daulat Singh predeceased his father, and, under ordinary circumstances, Rajah Ratan Singh would take the entire joint family properties by survivorship and transmit the same first to his widow, then to his daughter, and lastly to Khairati Lal, to the exclusion of the widow and the daughters of Daulat Singh. But it appears that in 1845 that is to say, long before the death of Daulat Singh, Ratan Singh abandoned, Hinduism and adopted the Muhammadan faith. But although his renunciation of the Hindu religion involved, under the Hindu Law, the forfeiture of civil rights to the extent of depriving him of his share in the joint estate, Daulat advanced no claim based on such forfeiture, and they remained joint until the death of Daulat in 1851. On the death of Ratan which took place in September 1851, the entire property was recorded in the name of his widow Raj Kunwar, Dispute then arose between the heirs of Daulat on the one hand and Raj Kunwar on the other; but the rights of the heirs of Daulat were not recognised by the Government. In 1860, after the death both of Sen Kunwar and Raj Kunwar, the daughters of Daulat and Khairati Lal entered into the compromise which the plaintiffs, the sons of one of the daughters of Daulat, sought by their action to set aside so far as it affected them. By this compromise Daulat's daughters obtained between them 8 1/2 annas share in the estate, whilst Khairati Lal received a 7 1/2 annas share. Partition was effected between them in terms of the compromise, and the parties obtained possession of the respective shares allotted to them. Upon the death of the daughters of Daulat the plaintiffs, who were the sons of one of these daughters, commenced the action to recover possession from the alienees of, Khairati Lal of the properties that were allotted to Khairati Lal. Their case was that, on the abandonment of Hinduism by Ratan, he forfeited his share in the joint property which vested in Daulat Singh, that they as his heirs were entitled to the entire 16 annas, and that they were not bound by the compromise of 1860, as the ladies, being mere life tenants, bad no authority in the absence of legal necessity, to alienate the 7 1/2-annas share in favour of Khairati Lal.
20. The Judicial Committee had no difficulty in rejecting the contention that was advanced on behalf of the plaintiffs. They came to the conclusion that the transaction of 1830 did not operate as an alienation by the ladies, but as a recognition of an antecedent title in Khairati Lal. "The true test to apply," said their Lordships, to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life-tenant. In the present case Khairati Lal acquired no right from the daughters of Daulat, for 'the compromise,' to use their Lordships' language in Rani Mewa Kunwar v. Rani Hulas Kunwar 1 I.A. 157 : 13 B.L.R. 312 (P.C.) : 3 Sar. P.C.J. 354 : Rafique and Jackson's P.C. No. 27, is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowleges and defines what that title is." The principle of the decision is this: where each party recognizes an antecedent title of some kind in the other, and the agreement acknowledges and defines what that title is, the transaction amounts to a compromise of a doubtful claim, and binds the reversioner if the limited owners have acted, not merely in their own interest, but in the interest of the estate which they represent. This case can have no possible application to the fasts of the case before us. The transaction of the 22nd September 1892 was baaed on the assumption that Ram Prashad and Sham Prashad were entitled to the disputed properties to the exclusion of the estate represented by Fateh Koer, and not on the assumption that there was an antecedent title of some kind both in Ram Prashad and Sham Prashad on the one hand and in Fateh Koer as representing the estate of Girwar Narain on the other. It was, therefore, an alienation by Fateh Koer, and not a compromise of a doubtful claim by her. In the next place, Fateh Koer did not pretend to enter into the transaction as representing the estate of Girwar Narain. She acted entirely in her own interest and secured a substantial benefit for herself, and not for the estate which she represented. The effect of the compromise was to extinguish the reversionary interest of the plaintiff and his brother, whereas the effect of the compromise in Khunni Lal v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 (P.C.) was to preserve that estate. I do not think that the appellant can take advantage of the principle laid down in Khunni Lal's case 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 (P.C.).
21. Khunni Lal's case 10 Ind. Cas. 477 : 33 A. 356 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 38 I.A. 87 (P.C.) was followed by the Judicial Committee in the case of Hiran Bibi v. Musammat Sohan Bibi 24 Ind. Cas. 301 : 18 C.W.N. 929 : 27 M.L.J. 149 : 1 L.W. 648 (P.C.), which was also relied upon by the appellant in the case before us. There the dispute was between the daughters of a deceased Hindu on the one hand and the widow of his alleged adopted son on the other, each party claiming to be solely entitled to the estate. The dispute was settled by a compromise, each party getting thereunder a share in the family property. The suit was then instituted by the daughter of the alleged adopted son as one of the reversionary heirs expectant on her mother's death to set aside the compromise as beyond the competence of a limited owner. The Judicial Committee held that the compromise was in no sense of the word an alienation by a limited owner of the family property, but a family settlement in which each party took a share of the family property by virtue of the independent title which was, to that extent and by of compromise, admitted by the other parties.
22. The case of Kanhai Lal v. Lala Brij Lal 47 Ind. Cas. 207 : 40 A. 437 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 45 I.A. 118 (P.C.) was lastly relied upon by the appellant. It was argued before us that the decision in Kanhai Lal's case 47 Ind. Cas. 207 : 40 A. 487 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 45 I.A. 118 (P.C.) involves a departure from the rule laid down in Amrit Narayan v. Gaya Singh 44 Ind. Cas. 408 : 27 C.L.J. 296 : 23 M.L.T. 192 : 22 C.W.N. 409 : 34 M.L.J. 298 : 4 P.L.W. 121 : 16 A.L.J. 265 : (1918) M.W.N, 306 : 7 L.W. 18(SIC) : 20 Bom. L.R. 546 : 45 C. 590 : 45 I.A. 35 (P.C.) but, in truth, it involves nothing of the kind. The principle established in Amrit Narayan's case 44 Ind. Cas. 408 : 27 C.L.J. 296 : 23 M.L.T. 192 : 22 C.W.N. 409 : 34 M.L.J. 298 : 4 P.L.W. 121 : 16 A.L.T. 265 : (1918) M.W.N, 306 : 7 L.W. 18(SIC) : 20 Bom. L.R. 546 : 45 C. 590 : 45 I.A. 35 (P.C.) was this, that a reversionary heir has nothing to assign or to relinquish and that his guardian, if he happens to be a minor, cannot bargain with the possibility of succession of the minor or bind him by any contractual engagement in respect there to. The principle was in no way touched by the decision in Kanhai Lal's case 47 Ind. Cas. 207 : 40 A. 437 : 22 C.W.N. 914 : 8 L.W. 212 : 24 M.L.T. 236 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 : 45 I.A. 118 (P.C.). The principle that was laid down in the last mentioned case was this: that if, upon the death of A, leaving a widow X, you put forward a hostile title as against X ant claim the estate in a present right, and not in a revesionary right, and induce X against her own interests and to her detriment to alter her position by agreeing to a compromise, and if under that compromise you obtain a substantial benefit, yon will not be heard to say after the death of X that, upon her death, you are entitled to claim the estate as a reversioner. As the Judicial Committee pointed out, there was no question in the case of a conveyance of, or of an agreement to convey, any future right or expectancy. The question was whether Kanhai Lal did not by his acts debar himself from claiming as a reversioner upon the death of X.
23. The following propositions seem to be established by the cases which have been cited at the Bar:
1. A reversionary heir can under no circumstances convey or agree to convey or relinquish any future right or expectancy; nor can his guardian, if he happens to be a minor, bargain with his possibility of succession or bind him by any contractual engagement in respect thereto.
2. An alienation by a limited owner does not bind the reversionary heir, but a limited owner can bind the reversionary heir by a compromise in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties, if it appears that the compromise was a fair and a bona fide compromise and that the limited owner entered into the compromise as representing the estate which was for the time being vested in her and anted for the protection and preservation of that estate.
3. Whenever the question is raised whether a transaction is an alienation or a compromise of a doubtful claim, the true test to apply is to see whether the alienee derives title from the holder of the limited interest. Where the transaction is based on the assumption that there was an antecedent title of some kind in both the parties, and the agreement acknowledges and defines what that title is, the transaction is not an alienation, but a compromise of a doubtful claim.
24. When we apply these principles to the case before us, it is manifest that the transaction of the 22nd September 1892 cannot bind the plaintiffs. As I have said before, that transaction can be looked at from two aspects, first, as a dealing by Naurangi Lal on behalf of the plaintiff and his brother with the possibility of succession of the plaintiff and his brother to the estate of Girwar Narain, secondly, as a compromise of a doubtful claim by Fateh Koer in whom the estate was vested for the time being. On the first question, the decision of the Judicial Committee in Amrit Narayan's case 44 Ind. Cas. 408 : 27 C.L.J. 296 : 23 M.L.T. 192 : 22 C.W.N. 409 : 34 M.L.J. 298 : 4 P.L.W. 121 : 16 A.L.T. 265 : (1918) M.W.N, 306 : 7 L.W. 18(SIC) : 20 Bom. L.R. 546 : 45 C. 590 : 45 I.A. 35 (P.C.) is conculsive. On the second question, all that I need say is that the transaction was a complete alienation, inasmuch as it did not recognize an antecedent title of some kind in Fateh Koer. That transaction, moreover, cannot bind the plaintiff inasmuch as Fateh Koer did not enter into it as representing the estate, and the result of it was to extinguish the reversionary interest of the plaintiff and his brother.
25. I would dismiss this appeal with costs.
Adami, J.
26. I agree.