Patna High Court
Mukteshwar Rai And Ors. vs Ramkewal Rai And Ors. on 23 August, 1961
Equivalent citations: AIR1962PAT28, AIR 1962 PATNA 28
JUDGMENT Mahapatra, J.
1. The appellants instituted a suit for partition in the court of the Subordinate Judge, Arrah, claiming one fourth share in the properties described in the two schedules given in the plaint. The genealogy described in the plaint shows one Naib Rai had three sons Jai Pargas Rai, Dilip Rai and Suraj Rai. Jai Pargas had two sons Sital Rai and Sukhpal Rai. Of them Sukhpal died issueless. Plaintiff No. 1 is the son of Sital and plaintiffs 2 and 3 are the sons of plaintiff No. 1. Dilip had two sons Kalapnath Rai and Baldeo Rai. Mt. Safeda Kuer, defendant No. 4, is the widow of Kalapnath. Kalapnath died near about 1922. Before him Baldeo Raj had died leaving behind Mt. Budha Kuer who also died in 1949. Suruj Rai had two sons Ram Sakal and Ram Kewal, defendant No. 1. Defendant No. 2 is the son of Ram Sakal deceased and defendant No. 3 is the son of defendant No. 1. According to the plaintiffs, the three branches of Jai Par-gas. Dilip and Suruj continued joint, and in that state, Raldeo and Kalapnath died.
In 1931, plaintiff No. 1, through his mother guardian, instituted a suit in the court of the Subordinate Judge (Title Suit No. 23 of 1931) against the present defendants 1 to 3, Mt. Budha Kuer and Mt. Safeda Kuer who were respectively defendants 4 and 5. In that suit half share in the joint family was claimed by the plaintiffs. That suit was com-promised on the 17th March, 1932, and a petition of compromise was filed which formed a part of the decree passed in the suit. The plaintiffs averred that, by that compromise, plaintiffs' branch got one half share, while the defendants 1, 2 and 3 got the other half in the properties covered in that suit, but out of each of the two shares, 10 bighas of land were taken out and given to defendants Mt, Safeda Kuer and Mt. Budha Kuer along with some of the money due to the family on mortgages, handnotes and book debts. It was agreed thereunder that the properties allotted to the two widows would remain in their possession during their lifetime and they would have no right to alienate or encumber them in any way, and after their death the plaintiffs and defendants 1 to 3 will divide the properties between them in equal shares. Schedules Ka and Kha properties of the present plaint Were given to those two ladles. Mt. Budha Kuer died on 29-8-1949, and cm her death, the plaintiffs and defendants 1 to 3 came in possession of her half share in the suit properties, as the widows were in possession as tenants in common and the properties were given to them by way of maintenance. The plaintiffs claimed in this suit one-fourth share in the suit properties.
2. Two written statements wore filed, one on behalf of defendants 1 to 3 and the other by defendant No. 4, Mt. Sateda Kuer. Both of them were on the same line. They pleaded that there had already been a previous partition in the family near about 1914 and all the joint family properties, both moveable and immoveable, had been divided between the three branches of Jai Pargas Rai, Dilip Rai and Suraj Rai. Kalapnath and Baldeo, sons of Dilip Rai, were in separate possession over their 1/3 share of the property before their death. Baldeo died in a state of jointness with Kalapnath, and after his death, his widow, Mt. Budha Kuer, lived with Kalapnath. On Kalapnath's death, his widow Mt. Safeda Kuer, defendant No. 4, inherited his properties as a Hindu widow. It was denied that under the terms of the compromise decree passed in Title Suit No. 23 of 1931, the plaintiffs and defendants 1 to 3 were given one-half share each in the family properties, and out of their two shares 20 bighas were given to defendant No. 4 and Mt. Budha Kuer. They claimed in their defence that in that compromise one share was given to the plaintiff, another equal share was) given to defendants 1 to 3 and the third equal share was given to defendant No. 4, Mt. Safeda Kuer, in recognition of her antecedent claim. Unity of title and possession in respect of the suit properties, was emphatically denied.
3. On these pleadings five issues were framed by the trial Court as follows :
"1. Is the suit as framed maintainable?
2. Was Mt. Budha Kuer a tenant-in-common along with defendant No. 4 by virtue of the compromise decree as alleged in the plaint?
3. Was there any separation and partition among Jai Parkash and his brother's branches in 1914 as alleged by the defendants?
4. Are the plaintiffs entitled to partition of the suit land during the lifetime of defendant No. 4 and are the plaintiffs in possession thereof?
5. To what relief, if any, are the plaintiffs entitled?
4. According to the learned Subordinate Judge, the suit was not hit by the provisions of Section 6 (a) of the Transfer of Property Act and thus was maintainable. He held that the properties of the present suit were allotted to the share of defendant No. 4, and Mt. Budha Kuer under the compromise decree in the previous partition suit and on and after the death of Mt. Budha Kuer defendant No. 4 (Mt. Safeda Kuer) has been in exclusive possession of the suit properties. As the plaintiffs did not ask for recovery of possession and pay ad valorem court-fee, the suit as framed was not maintainable. He construed the terms of the compromise to mean that the parties intended that after the death of one of the widows, the surviving widow was to possess the entire property, and the widow's estate was conferred on the two ladies. During the lifetime of defendant No. 4 the plaintiffs could not be entitled to claim a partition. His finding on the plea of previous partition in 1914 was against the defendants; but he found, however, that Kalapnath and Baldeo died in a state of separation from the plaintiffs and defendants 1 to 3. On these findings the suit was dismissed with costs, and against that the present appeal by the plaintiffs was filed here.
5. As indicated above, the plaintiffs claimed their half share in half of the suit properties which were given to Mt. Budha Kuer by way of maintenance under the terms of the compromise of 1931. That was, according to them, a family arrangement in which both Mt. Sateda Kuer and Mt. Budha Kuer were given some properties in lieu of their maintenance on the terms that they would not alienate or encumber them in any way, and on their death, the plaintiffs and defendants 1 to 3 would divide them in equal shares amongst them. It is, therefore, important to find Out what nature of interest was created in favour of the two widows under that compromise.
Was it maintenance grant, Hindu widow's estate, or absolute title? According to the plaintiffs, it was a maintenance grant, while the defendants assert that it was a widow's estate. Both parties are agreed that in the present case the right of the widows to the suit properties is traceable to the compromise petition. It is well established that in such a case the intentions of the parties are to be gathered from the terms of the compromise. When the language of the terms are not clear or are ambiguous surrounding circumstances, in which the compromise was arrived at, may be looked into, to determine the exact import of the agreement. The same rule applies when a will, gift or bequest is under examination. Exhibit 1 is the compromise decree in Title Suit No. 25 of 1931 and it incorporates the compromise petition dated the 17th March, 1932. The petition opens with a statement:
"a compromise has been effected between the parties on the following terms irrespective of the statements of the parties made in the plaint and the written statement."
I have indicated before, that the plaintiffs' case in that suit was that the family was joint and the properties were divisible only between the plaintiffs and defendants 1 to 3 in equal shares, while the two widows, Mt. Budha Kuer and Mt. Safeda Kuer, were entitled to maintenance. The written statement filed on behalf of the two widows in that suit claimed that they had got a right to and possession over one-third share as Hindu widows in the property, and they had been in occupation of the same following the partition in 1914. Similar was the statement of the present defendants 1 to 2 in that case; but irrespective of the different pleas of the parries there, the compromise was made. There were 11 paragraphs in the compromise petition, following the opening statement as stated above. The first paragraph said that the lands were divided into three shares, one was allotted to the plaintiffs, another to defendants 1 to 3 and the third to defendants 4 and 5, and that the parties would remain in possession and occupation thereof according to the details given in that compromise petition. Paragraph 2 dealt with the usufructuary mortgage bonds, and it was suppurated that the parties would remain in possession and occupation of the lands covered by those bonds as detailed in that petition. Paragraph 3 dealt with money due under the mortgage bonds, handnotes and bahi khata and similar provision was made in respect or the three shares.
Paragraph 4 dealt with ornaments, grains, utensils and cattle. They were divided in three equal shares among the parties. Paragraph 7 was about the trees in mauza Jamua on tauzi No. 4383. and they were also divided in three shares among the parties. Paragraph 8 dealt with the money suit pending in the court of the first Munsif, Arrah, which had been instituted by defendant No. 1 against third parties. The plaintiff was given the right to realise the money due under that. Paragraph 9 was about a handnote executed by defendant No. 1 in the name of another stranger for Rs. 1500/-. The plaintiffs and defendants 1 to 3 were held liable to pay that debt in equal shares, and the two widows were to have no liability in that respect. Paragraph 10 provided that the present plaintiff No. 1 and defendants 1 to 2 would pay the entire cost of stamp for preparing the final decree in the suit. In paragraph 11 it was stated that the suit should be disposed of in terms of the compromise, and that the parties would hear their own costs. As a token of admission of the parties to the terms of the compromise, the parties and their pleaders put their signatures on that petition. The details of the three shares were given at the end of that compromise petition.
I have not indicated the provisions under paragraphs 5 and 6 till now, because they call for a detailed examination, and they would be the relevant portions, as they contain controversial terms of agreement. In that it was stated that the income from the properties allotted to defendants 4 and 5 by virtue of the compromise would be appropriated by them during their lifetime and the plaintiff (the present plaintiff No. 1) and defendants 1 to 3 (the present defendants 1 to 3) would have no right to that during the lifetime of defendants 4 and 5; but the two widows neither had nor would have in future any right to create any encumbrance or to execute any sale deed or rehan bond in that respect, After the death of defendants 4 and 5 (Mt. Budha Kuer and Safeda Kuer) the plaintiff and defendants 1 to 3 would divide half and half among themselves the properties allotted to the share of defendants 4 and 5. Defendants 4 and 5 neither had nor would have any objection to that. Similar statements were made in respect of moneys due under rehan bonds, mortgage bonds, handnotes and bahi khata.
6. The language employed in the different: paragraphs, particularly finch as "divided into three shares", "allotted to the shares of the parties," "divided among the parties", "one share has been allotted to the plaintiff", "one share to defendants Nos. 1 and 2" and "one share to defendants 4 and 5" "and the parties will remain in possession and occupation thereof leave no doubt that the three different parties, namely, plaintiff No. 1, defendants I and 2 and the two widows were given each one share. The allotments to each of them, as given in that petition, show that they were all equal not only in regard to the immoveable properties but also about the debts due to the family.
The moveable properties were also divided between them and no dispute was left in that respect. The language being so clear, no doubt is loft about the. intention of the parties.
7. Learned counsel for the appellants contended that paragraphs 5 and 6 imposed a restriction on the enjoyment of the two widows, and they were only consistent with maintenance grant and no other interest. There is no denying the fact that in no case the two widows would have got any absolute title. If one share was given to them as would have been due to the branch, which they represented on the death of their respective husbands, they would only hold the same as limited owners, and in that case, they would have no power to alienate and encumber the estate which. would be binding beyond their lifetime. The restrictions provided under paragraphs 5 and 6 are no more than that. The appellants urged that the terms were by way of absolute prohibition and did not leave the widows with any power to effect any transfer for any legal necessity, which a Hindu widow would be entitled to, under the law. Whether that liberty was left with the widows under the terms of the compromise is immaterial because that is a right due to them under the law. In the case of Rama Singh v. Harakhdhari Singh, 47 Ind Cas 710 : (AIR 1918 Pat 289) a petition of compromise, which was filed in a dispute before the Land Registration Officer between a widow and the revisioners of her husband, came for consideration, in a suit, which was subsequently filed by the reversioners for a declaration that an alienation made by the widow was not binding upon the plaintiff reversioners. The terms of the compromise included the following provision :
"if Musammat Sakalbasi Kuer (widow) makes any transfer or creates any incumbrance that will be null and void and there will be no injury to the title of Jadunath Singh and Palakdhari and their heirs and representatives."
Their Lordships held that those terms intended to give her a life estate with such powers and limitations as are vested in a Hindu widow. That was obvious from the position of the parties and from the true interpretation of the terms of the compromise. All that appeared to have been intended was that the alienation made by the widow should not be binding upon the reversioners at all. There was no intention that the widow shall not be able to deal with the property as a Hindu widow under Hindu law. Their Lordships drew support from a decision of the Privy Council in Mt. Bibi Sahodra v. Rai Jang Bahadur, 8 Ind App 210 (PC), they held, as a matter of fact, that the alienation made by the widow in that case, was not for legal necessity, and, therefore, not binding upon the plaintiff reversioners. The restriction against any alienation or encumbrance by the widows in the compromise in the present case were less rigorous, in the sense that it was not stated that any such alienation or encumbrance would be null and void. It was stipulated that the widows did not have any right to create any such encumbrance or alienation. Thus absence of any clear terms providing for the right of an alienation for legal necessity, would not make any difference as to the. nature of the right created in favour of the widow. I should make it clear that that We are not really called upon in this case to decide about the power of alienation of the widows. What I have stated before was only by way of understanding the import and meaning of the agreement in clauses 5 and 6 of the compromise petition.
8. Next, it was contended for the appellants that the surrounding circumstances, particularly the position of the parties as it was at the time of the compromise, should be taken into consideration for understanding the appropriate meaning of the compromise and that would indicate in what way the parties wanted to provide for the two widows. In my view, that is not necessary, because the terms of the agreement are abundantly clear and leave no doubt or ambiguity. It is only where there are no clear words describing the kind of interest which was created, the question would be one of construction and the Court would have to collect the intention of the parties from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. In such cases, the substance and not form should be kept in view.
In our case, such a contingency does not arise as the terms are expressive and unambiguous. Even if the position of the parties and the surrounding circumstances prevailing at the time of the compromise are taken into account, the conclusion will not be different. In that suit, the defendants set up a previous partition in the family to repel the claim of the plaintiffs, to half share on partition. The widows also set up a clear defence that they were in possession of one-third share which had fallen to their husbands. This dispute between the parties was settled by the compromise without determining which version was correct. They made it clear in their petition that irrespective of the cases of the parties, the compromise was effected in the terms provided thereunder. Learned counsel urged that, according to the finding of the trial court in the present case, there was no partition in 1914. The defendants did not speak of any partition other than that. Thus in 1931 the plaintiff and the defen-dants were in a joint Hindu family, and in that state of jointness, the husbands of the two widows Mt. Budha Kuer and Mt. Safeda Kuer had died. The widows were thus entitled to maintenance and not a widow's estate. What was given under the compromise to them, viewed in that light and in that background, can only mean a maintenance grant and nothing more than that.
This contention overlooks the proposition that in a compromise, one may be given more than what one is entitled to under the law. There was nothing to prevent the parties, namely, the plaintiff end defendants 1 to 3 in that cage, from agreeing to give the rights of a Hindu widow over the properties which were left in the possession of the two widows under the compromise, even if they, in fact and in law, were not entitled to that at that time. If the terms of the compromise were not clear, probably the argument of the appellants" teamed counsel would have been helpful. He referred us to the case of Nathu Lal v. Babu Ram, AIR 1936 PC 103. There an award given by the arbitrators in 1892 came for interpretation in respect of the right given to a widow, Mt. Jamuna, in the properties allotted to her. Ram Sahai and Ji Sukh Ram were two brothers. Mt. Jamuna was the widow of the latter. Mt. Jamuna admitted before the arbitrators that the two brothers were joint. On that admission and other evidence, the Court held that the rights of the parties must be determined upon the footing that on the death of Ji Sukh, his property passed by survivorship and not by inheritance. It was contended by the defendants there that as Mt. Jamuna claimed before the arbitrators nothing more than a Hindu widow's estate, the award should be construed in that light as merely acknowledging that title and not more than that.
Observations of their Lordships of the Judicial Committee in a case reported in Khunni Lal v. Gobind Krishna Narain, 38 Ind App 87 (PC), to which I shall refer in detail later, were relied upon by the defendants, in support of their contention. But that was repelled by the Judicial Committee. Their Lordships went to consider the language of the award and found that it was the same as regards the property given to Ham Sahai and the property given to Mt. Jamuna, no words being inserted to narrow her interest. They held that tbe widow was given absolute right in the properties given to her, in spite of her claim of an widow's estate only. The decision only supports the view that the language of an award or compromise agreement is of paramount importance to determine the nature of rights of the parties under it, and that a party may be given more than he claimed.
For the defendants-respondents, it was urged that the compromise should be taken as based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledged and defined what that title was. Reliance was placed on two cases of the Privy Council: Mewa Kuwar v. Rani Hulas Kuwar, 1 Ind App 157 (PC) and 38 Ind App 87 (PC). Both the cases dealt with one compromise of the year 1860. The fads leading to that were as follows : One Ratan Singh was the owner of vast properties. He embraced Islam religion in 1845 and died in 1851, his only, son Daulat having predeceased him. On his death, his widow Raj Kuwar was recorded in respect of all the properties. There wag a dispute between Raj Kuwar and Daulat's widow Sen Kunwar. Following that, the Court of Wards came to the management of the estate. Daulat's widow Sen Kunwar died in 1857 and Ratan Singh's widow Raj Kuwar in the following year. Daulat had two daughters Chhattar Kunwar and Mewa Kunwar. Khairati Lal was the daughter's son of Ratan Singh.
A dispute arose between Daulat's daughters and Raj Kunwar's daughter's son Khairati Lal. While that dispute was pending in the Revenue Court, a compromise was reached between the contestants in 1860, by which 8 annas 6 pies interest was given to the daughters of Daulat and 7 annas 6 pies to Khairati Lal. After the death of the two daughters of Daulat, Mewa Kunwar's sons laid a suit claiming absolute title in respect of the entire properties belonging to Ratan Singh. Their case was that when Ratan Singh embraced Islam faith, he forfeited all his rights to the joint family property, and Daulat, his son became entitled to the same. On his death, his daughters come to the properties as "life tenants" and without any lawful necessity gave away 7 annas 6 pies share to Khairati Lal who had no right whatsoever, under the compromise of 1860. The plaintiffs as reversionary heirs of Daulat Singh became entitled, on the death of the survivor of the two daughters of Daulat Singh, to absolute possession of the entire estate of Daulat Singh.
They thus claimed what had been given to Khairati Lal under the compromise from his successors-in-interest. In 38 Ind App 87 (PC), their Lordships of the Judicial Committee held that whatever right Daulat had acquired under the Hindu law to the share of Ms father, came into existence in 1845 on the father's conversion to Islam faith, and no suit could be brought to enforce that right after the lapse of 12 years. Thus the heirs of Daulat had no existing enforceable right to the share of Ratan Singh and the entire property was recorded in the name of his widow Raj Kunwar. Under those circumstances the parties, under the advice of the District Officer, instead of engaging in a long litigation, arrived at a mutual settlement of their claims. According to the undisputed facts, in 1860 Khairati Lal had become entitled to 8 annas share being the daughter's son of Ratan Singh and Daulat's daughters were entitled to the other half share belonging to Daulat.
In that state of affairs, the compromise, that was effected between the parties in 1860, was taken by their Lordships to be a settlement between several members of the family of their dispute, each one relinquishing all claims in respect of the property in dispute other than that falling to his share, and recognising the right of the others as they had previously asserted, to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded that arrangement. It should be kept in mind that in the dispute before that compromise, either party claimed 16 annas share. In that view, their Lordships held that the compromise which was made between the daughters of the predeceased son and the heir at law of the Muhammadan convert, under which the said daughters obtained from the Court of Wards in possession, 8 1/2 annas share in the property and the heir at law 71/2 annas, was an agreement bared on the title of the parties existing antecedent thereto and acknowledged and defined thereby, and that did not amount to an alienation by the daughters of Daulat. The plaintiffs were held bound by that compromise.
It cannot be argued from what their Lordships observed in that ease, that the Judicial Committee wanted to lay down, as a proposition of law. that in all cases whatsoever, compromise would be taken as recognition of any portion of the right claimed by the parties, or as a relinquishment of any portion of such right. On the facts of that case, the compromise arrived at between Daulat's daughters and Ratan Singh's daughter's son, was held is one of that nature. In the same context, the observation of their Lordships in 1 Ind App 157 (PC), at page 166, about that very compromise, was that it was based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledged and defined what that title was. It did not create any new interest or title. The respondents' contention that as a rule of law the compromise in the present case must be taken as one in acknowledgment of the antecedent title of the two widows, as made out in their written statement in the previous partition suit of 1931, cannot succeed. But, nevertheless, the terms of the compromise as embodied in Exhibit 1 do indicate that a right like that of a widow's estate wag conceded or created in favour of Mt. Budha Kuer and Safeda Kuer.
9. Another argument was advanced for the appellants. The provision in the compromise about the division of the properties, given to the two widows, after their death, between the plaintiff and defendants 1 and 2 could not be consistent with the creation of a widow's estate. On the death of the limited owner, a Hindu widow, the nearest reversioner of the last male owner would succeed. The parties could not have intended, it was urged, to deviate from that rule of succession and to provide for an equal division between the heirs of different grades. Defendant No. 1, being the nearest reversioner, if alive on the death of any of the widows, would alone be entitled to succession in preference to the plaintiff No. 1 or plaintiffs 2 and 3 or defendants 2 and 3.
If the properties were taken as belonging to the plaintiff No. 1 and defendants 1 and 2, and they gave, as a bounty to the two widows, a portion of that for their enjoyment during their lives, they were justified in providing for the division of those properties between them in equal shares after the death of the widows. The grant to the ladies would be only by way of maintenance. This argument is attractive but cannot succeed in view of the other terms incorporated in the. compromise which created a share for the ladies in all kinds of moveable and immovcable properties of the family, a thing, in the usual course of events, inconsistent with a concession for a mere maintenance. Intention of the parties to make a deviation from the ordinary rule of succession to the property, after the death of a limited owner, might have led to such provision in the compromise petition. Whether it would stand in the eye of law is a different question and with that, I shall deal later.
10. The next point for consideration will be whether on the death of any of the widows, any portion of the property given to the two widows, will come for division between the plaintiffs and defendants 1 to 3. For the appellants, it was contended that the two widows were given the right of enjoyment of the properties an tenants-in-common, and on the death of either of them, the surviving widow would not be entitled to that, but the provision for division of the property on the death of the widow would fake effect. Whether the two widows were given the suit properties by way of maintenance for life or as widow's estate will not make any difference so far as their status during their life time is concerned. In either case, they will be tenants-in-common. To that the respondents also conceded before us.
Their argument was that the entire suit properties were given as widow's estate to Mt. Safeda Kuer, who was defendant No. 5 in the previous partition suit, and Mt. Budha Kuer, who was defendant No. 4, was only entitled to be maintained by Mt. Safeda Kuer out of that property. The reason for this argument was that Budha Kuer's husband, Baldeo Rai, had died before Kalapnath, husband of Mt. Safeda Kuer, while both of them were living in a state of separation from the other two branches of the plaintiffs and defendants 1 to 3. The finding of the trial court that there was no separation or partition between the three branches in or about 1914 was not challenged before us by the respondents. Another finding at a different place to the effect that Kalapnath and Baldeo had died in a state of separation from the plaintiffs and defendants 1 to 3 was seriously disputed by the appellants, and it was pointed out that there was no evidence to support that. (After discussing the evidence, the judgment proceeded.) The finding of the trial court that Baldeo and Kalapnath died in a state of separation cannot be supported either on evidence or on the case made out by any of the parties to the suit. Thus we are left with the position that the family was joint till the compromise was made in the previous partition suit on the 17th of March, 1932. In that view the contention of the respondents that Mt. Safeda Kuer alone was entitled to the share of her deceased husband, who by survivorship, took the entire estate belonging to him and his deceased brother Baldeo, cannot be accepted. Besides, the written statement filed in the previous partition suit on behalf of Mt. Safeda Kuer and Mt. Budha Kuer did not make out such a case. They stated that both of them had "got right to and possession and occupation over one-third share as Hindu widow in the property that has been (already) partitioned" and they were "by no means entitled to maintenance only".
In that background, the terms of the compromise cannot but mean that what was conceded by. the parties in favour of both the two widows was limited interest in the properties, given to their share, like that of a Hindu women's estate. In that case both the ladies came into possession on the basis of the compromise as tenants-in-common, and on the death of either of them the surviving widow cannot succeed to the whole properties. If they were co-widows of one person, that would have been the position, but not in the present case. When no share of either of the two widows was separately indicated in the properties given to both of them jointly, each must be taken to have equal share in it. On the death of one, half share in those properties will devolve upon the persons who would be entitled to that either according to the terms of the compromise or the rule of succession. Nowhere it was mentioned in the compromise agreement that on the death of one of the widows the other widow would succeed to her share.
The respondents contended that that should be taken to be the intention of the parties as Otherwise they would not have provided for the division of the properties only after the death of both the widows. When the manner of enjoyment of the property during the lifetime of the widows, both in regard to immoveable properties and usufructuary mortgage and other bonds, was described in detail in the compromise itself, and it was stated that no dispute was left in respect of moveables which had been divided between the parties, they would not have stopped short to say that on the death of one of the widows, the other one will be in the enjoyment of the entire properties given to their share. Absence of such provision cannot justify an implied intention to that effect. When there is no such authority given in favour of the surviving widow, the law or other terms of the compromise must come to the aid of the parties as there cannot be a vacuum in regard to succession to any property. If Mt. Budha Kuer had a widow's estate in her half share of the suit properties, that should have come to the nearest reversioner of her deceased husband, Baldeo Rai, after her death on the 291h of August, 1949. Amongst the plaintiffs and defendants 1 to 3, defendant No. 1 is no doubt the nearest to the deceased Baldeo; but this ordinary line of succession was interrupted by the terms of the compromise which said that after the death of the, widows, plaintiff No. 1 and defendants 1 to 3 would divide half and half among themselves the properties allotted to the shares of the widows. It is now to be seen what was meant by this term.
11. According to the respondents, it meant that only on the death of both the widows such division would take place, and as long as one of the widows is alive, neither the plaintiffs nor defendants 1 to 3 can have any possession Over any portion of the suit properties. The appellants urged that such a construction is foreign both to the language and the clear intentions' of the parties appearing from the compromise petition itself. It was argued on their behalf, that the word "and" used in the sentence "after the death of defendants 4 and 5, the plaintiff and defendants 1 to 3 will divide half and half among themselves the properties allotted to the share of defendants 4 and 5" was used in the sense of "or". Such a view cannot be ruled out completely. It is very well known that not only in statutes but also in documents, the two words "and" and "or" are sometimes used as synonyms and in the same sense. That would depend upon the context and meaning of other, provisions in the same statute or document.
The respondents pointed out that the word "and" has been used at more than one place in paragraph 5 of the compromise petition which included the provision for division of the properties on the death of the two widows. If "or" is substituted for "and" in each place of that paragraph, it will lead to absurdities or meaninglessness. I do. not find so. Even without substituting "or" for "and" in the relevant sentence, the meaning cannot but be that on the death of either of the two widows, the plaintiff's and defendants 1 to 3 would come to possess the share of the deceased widow in the suit properties. If that construction is not put upon the provision, an absurd situation will be created inasmuch an the share of the deceased widow would remain without any ownership. The surviving widow, in absence of any authority to possess the same in the agreement of compromise, cannot come to it with any lawful claim. That portion of the property could not have been intended by the parties to remain in such vacuum state.
In the context of other provisions in the compromise petition there cannot but be the conclusion that the parties including the widows intended and provided for return of the suit properties to the plaintiffs and defendants 1 to 3, on the death of any of the widows, to the extent of the share given to the deceased. The suit properties were given to the two widows for their enjoyment during their lives, and there could be no justification for giving one of them the right to enjoy the whole property for herself alone after the other widow is gone. From a view point of grammatical construction also, the meaning that I have taken is justified. If any other form of expression was to be used to convey that meaning, it would have been more cumbrous. We have to bear in mind that the language which we are considering is only an English translation of the Original Hindi text. We have looked to the original also. The view that I have taken above is not unjustified on that text. The word '"aur" in Hindi meaning "and" in the context in which it has been used, conveys that meaning. Thus, on the death of Mt. Budha Kuer her half share in the suit properties came to the plaintiffs and defendants 1 to 3 according to the terms of the compromise.
12. It was contended for the respondents that the above provision for division of the property of any of the two widows between the plaintiffs and defendants 1 to 3 is hit by Section 6 (a) of the Transfer of Property Act, which reads as follows :
"Property of any kind may be transferred except as otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate the chance of a relation obtaining a legacy on the death of a kinsman or any other mere possibility of a like nature, cannot be transferred."
It was argued that the right of the plaintiffs and defendants 1 to 3 to the share of any of the two widows in the suit properties was only a chance of succession, in the sense contemplated under Section 6 (a), and, therefore, that chance could not be transferred, Defendant No. 1 had that chance of succession being the nearest reversioner of Baldeo Rai, and though it was open to him to relinquish that right completely, he had no power to transfer that right either wholly or partly in favour of any other person, such as to share that right with the plaintiffs, as done in the present case. Learned counsel referred us to the case of Baikunth Singh v. Jhulan Singh, AIR 1950 Pat 488. There three reversioners A, B and C instituted a suit against a widow for a declaration that the two girls who had been set up by her as daughters, were not really so. During the pendency of the suit one of the reversioners, plaintiff A died and his son D was substituted in his place. As agreement was executed by the other two reversioners (B and C) and D, the son of the deceased reversioner, to the effect that in the event of success of the pending suit, D would be entitled to the same share in that property to which his father would have been entitled. The plaintiff later on succeeded in the suit.
In a later litigation in which D claimed his share according to the agreement, it was held that that agreement was not a family arrangement but a transfer of property which could have come to the reversioners only after the death of the widow, who was alive on the date of the agreement. The agreement, it was held, only dealt with a mere spessuccession is and as such, was unenforceable under Section 6 (a) of the Transfer of Property Act. On three main points the case is distinguishable : The agreement was not in regard to the dispute involved in the suit itself where the title of the two alleged daughters of the widow was under challenge; secondly, the widow was not a party to that agreement; and thirdly, A and D were members of another family and the family of B and C had no concern whatsoever with them and, as such, the agreement was not a family arrangement. In our case the compromise was nothing but a family arrangement, and it was in settlement of the disputes between the three different groups of one and the same family. The widows themselves were not only parties in the suit but to the compromise itself. The reversioners including the nearest reversioner, defendant No. 1, were also parties to the compromise; and what is more important, there was no widow's estate in possession of Mt. Budha Kuer and Mt. Safeda Kuer at or before the compromise.
According to the finding of fact, the family was joint on the date of the compromise, or to say more correctly, at the time of institution of that suit in March, 1931. Plaintiff No. 1 and defendants 1 to 3 were then coparceners belonging to two branches each having a half share in all the family properties, though that was disputed by the defendants in that suit. In settlement of that dispute the parties arrived at a compromise, by which some properties were also given to the two widow's, subject to some well defined restrictions which, as I have already pointed out, were like that of a Hindu woman's estate; but it cannot be said that the widows, after the compromise, came into possession of the estate of their deceased husbands. Therefore, there was no question of succession by reversionary heirs of their deceased husbands, which could be said a spes succession is. An arrangement for the division of the widow's property on their death, as provided in the compromise, would not amount to either transfer or relinquishment, in part or whole, of a spes succession is by any of the reversioners. The impugned terms of the agreement in question did not offend the provisions of Section 6 (a) of the Transfer of Property Act, as that was attached to the very property which was being allotted to the parties, and that agreement did not deal with any other property which was not then the subject of partition.
In the ease of Rai Kumar Singh v. Abhai Kumar Singh, AIR 1948 Pat 362, this Court was called upon to consider a term in a compromise which formed the basis of a preliminary and final decree in a partition suit between a son on one side and his father, step-brothers, step-mother and grand mother on the other side. In that case, by the compromise, the plaintiff was given 7/30th share in the family properties, which was a little more than he was entitled to in law. There was a stipulation in that compromise agreement that the grand mother had relinquished her share in partition, and that on the demise of the father, step-brothers, step-mother of the plaintiffs, the plaintiff and his heirs snail have no claim whatsoever to the shares allotted to the said persons, and likewise they or their heirs shall have no claim whatsoever to the share allotted to the plaintiff on his demise. This clause about the relinquishment was contended before their Lordships in that case as offending Section 6 (a) of the Transfer of Property Act, because it was a contract not to claim a share in the property in the event of one becoming entitled to on the decease of a living person. It was held, after considering several cases (Jagdam Sahay v. Rup Narain Mahto, 5 Pat LT 375 : (AIR 1924 Pat 736); Nazir-ul-Haq v. Faiyaz-ul-Rahman. ILR 33 All 457; Kanti Chandra v. Ali Nabi, ILR 33 All 414 and Uma Shanker v. Ramcharan, ILR (1939) All 950 : (AIR 1939 All 689) (FB) ), that there was nothing illegal in a person making a contract of that nature, and Section 6 (a) did not affect such a contract.
There is a distinction between possibility coupled with interest and bare or naked possibility, such as the hope of inheritance entertained by the heir. In our case, on the date of the compromise, the plaintiffs had a title to the properties though the extent of the title was in dispute in the suit. As a result of the family arrangement embodied in the compromise petition all the parties agreed that they would not claim any share or interest in any property other than allotted to their respective shares, and what was given to the two widows would return to the plaintiff and defendants 1 to 3, on the demise of the widows, for the obvious reason that that properly actually belonged to them, and they had only given up their rights in favour of the widows for their lifetime. Thus the parties did not deal with any future rights in any other property. They were anxious that the property allotted to the widows should never go out of the other two branches after their death. There was no question of dealing with any spes successionis or future rights in any property other than that involved in that suit. The impugned term of agreement, therefore, cannot be hit by the provisions of Section 6 (a) of the Transfer of Property Act,
13. Learned counsel for the respondents wanted to distinguish AIR 1948 Pat 362 by saying that the clause of the compromise under consideration in that case was a complete relinquishment of a future claim in a property which could arise on the death of a person living then. It was not a transfer of an expected future claim in favour of another, as has been done in the case before us. The agreement, according to the judgment in that case, does not appear to have been saved from the operation of Section 6 (a) on this kind of reasoning. That was considered in the background of a family arrangement, and a contract not to claim a share in future in some properties which were the subject-matter of partition in the suit. In my view, that case can be correctly applied here.
14. For the reasons stated above, the plaintiffs can claim a half share in half of the suit properties over which Mt. Budha Kuer was in possession till her death. To the other half share defendants 1 to 3 are entitled.
15. The trial court had found that the suit way not maintainable as the plaintiffs had not asked for recovery of possession and did not pay ad valorem court-fee. The plaintiffs have since then amended their plaint and paid the requisite court-fee, under orders of this court. Thus they would be entitled to partition of their one-fourth share and to recover possession of the same from defendant No. 4.
16. The result is that the appeal is allowed and the judgment and decree of the trial court are set aside. The plaintiffs are entitled to a preliminary decree for partition of one-fourth share in the suit properties but, in view of the circumstances of the case, there will be no order for costs in this court or in the lower court. Parties will bear their own costs throughout.
Tarkeshwar Nath, J.
17. I agree.