Kaliammal and Others vs Sundarammal and Others

Rajamannar, O.C.J.

This appeal arises out of a suit filed by the first respondent in the Court of the Subordinate Judge of Salem to recover possession of the

properties set out in Schedule A to the plaint as the sole surviving daughter and heir of her father, one Chinnaswarni Kandar, after the death of her

mother, Meenakshi Ammal. Originally, there were ten defendants of whom the first defendant was the main contesting defendant and defendants 2

to 10 claimed to be lessees under him. The first defendant died soon after the institution of the suit and defendants 11 to 15 were brought on

record as his legal representatives. But the 11 th defendant disclaimed all interest in the suit properties and therefore may be left out of

consideration. The suit was decreed and hence the appeal by defendants 12 to 15 as the legal representatives of the first defendant.

One Kolanda Karuppa Kandar had two wives. By his first wife, he had two sons, Kumarasami and Swami; and by his second wife two sons,

Periasami and Chinnasami. Chinnasami was married to Meenakshi, the mother of the plaintiff, and he had by her two daughters, the plaintiff and

another who died in or about 1930, leaving a son. Periasami married two wives and by his first wife had a daughter, and by his second wife

Vellayyammal, two daughters. The first defendant is one of the sons of Swami, the other son being the 11th defendant Chinnasami died in or about

1907, Periasami died on 14th June, 1926, leaving him surviving Vellayyammal and his three daughters. Meenakshi died on 26th August, 1942.

After the death of Kolanda Karuppa Kandar, Chinnasami, the father of the plaintiff, filed a suit O.S. No. 10 of 1892, in the Court of the District

Judge of Salem against his three brothers for a partition of the family properties. This suit ended in a reference to arbitration, and an award was the

result. In spite of this, however, in 1895, Chinnasami and Periasami filed two suits, O.S. Nos. 24 and 25 of 1895, respectively, in the District

Court of Salem for recovery of their respective one-fourth shares, together with mesne profits. These suits were con-cluded by a razinama dated

21st December, 1896 and marked as Ex. P.-1 in the case. A decree was passed in accordance with the razinama on 6th January, 1897. The

razinama contained separate lists of properties falling to the respective shares of the four brothers and provided that pattas in respect of the

respective properties shall be transferred to their respective names.

As already stated, Chinnasami died in or about 1907, leaving behind him his widow Meenakshi and his two daughters including the plaintiff. On

Periasami''s death in June 1926, disputes arose between Vellayyammal, the widow of Periasami, and Meenakshi, the widow of Chinnasami on the

one side, and Appavu Kandar, the first defendant on the other side. The disputes came to a head when the two widows filed a suit O.S. No. 45 of

1926 in the Court of the District Judge of Salem against the first defendant in the main, though the other members of the family and their servants

were added as party defendants. The plaint proceeded on the basis that Periasami and Chinnasami had become divided in status on account of the

consent decree already mentioned, that on.the death of Chinnasami, his widow Meenakshi, became entitled to his properties and that on the death

of Periasami, Vellayyammal, his sole surviving widow became entitled in like manner to her husband''s property. The suit was resisted by the first

defendant, and his defence was based upon two main allegations, namely, (1) as between Periasami and Chinnasami there was only a "" paper

partition "" and it was never acted upon; the lands were never divided nor enjoyed separately and the two brothers continued as members of a joint

family. The legal position was stated as follows:

...inasmuch as there was a formal partition they should be deemed in law to have become reunited and all the incidents of a joint family attach

themselves with the result that after the death of Chinnasami Kandar, Periasami Kandar became entitled to the whole property by virtue of

survivorship.

(2) Periasami at the time of his death expressed his desire that he (the first defendant) should manage all his properties, maintaining the family in the

same manner as he had been doing all along and handed over to him the keys of his saferoom. This expression of Periasmi''s desire was described

as amounting to an oral will in favour of the first defendant appointing him as an executor.

Sometime prior to the institution of this suit, the two widows executed a general power-of-attorney (Ex. P. 4) in favour of one Nataraja Kandar

and Samiappa Kandar who happened to be also the husband of the plaintiff to manage their properties and affairs. Apparently Nataraja Kandar

was also assisting the widows in the litigation. This Nataraja Kandar, however, appears to have behaved in a manner prejudicial to the interests of

the widows, and on 8th December, 1926, the widows purport to cancel the power in his favour (Ex. P. 5). On 8th February, 1927, these two

widows and the first defendant filed into Court a razinama (Ex. D. 5). As the terms of this razinama are of great importance in deciding this appeal,

they are set out in full:

Whereas we the plaintiffs 1 and 2 are women and whereas Natesa Kandar in whose favour we had executed power-of-attorney has deceived us,

we, as decided by the mediators, have conveyed the suit properties and the whole of the remaining properties to the first defendant himself with

absolute rights, in accordance with the dying wish of Periasami Kandar, husband of Individual No. I. In future, he should protect and take care of

us. The first defendant himself, shall get the entire properties with absolute rights and administer. We have cancelled even hereto before, the

power-of-attorney executed jointly to Nataraja Kandar and Samiappa Kandar. Plaintiffs I and 2 do not accept any of the proceedings taken by

him. The first defendant himself shall receive the entire moveables and cash which had been entrusted by plaintiffs 1 and 2 with the said Nataraja

Kandar. Plaintiffs 1 and 2 have no other right in the properties except the right to maintenance. To this effect is the razinama entered into between

the first and second plaintiffs and the first defendant. We pray that a decree may be passed in terms of the razinama.

A decree was passed on 7th March, 1927, in terms of the compromise (Ex. D-6). There is evidence to show that the first defendant, Appavu

Kandar, took proceedings in furtherance of his rights obtained under the compromise decree.

In 1929, two of the daughters of Vellayyammal filed O.S. No. 4 of 1929 in the Court of the District Judge of Salem for a declaration that the

arrangement by way of compromise entered into on 7th March, 1927, was not valid beyond the lifetime of Vellayyammal and did not bind them as

the reversionary heirs to the estate of Periasami. Nothing came out of this suit, which was withdrawn and dismissed on 19th August, 1929 (Ex. D-

14). Nothing of importance happened thereafter till 1939, when Meenakshi and Vellayyammal filed two suits, O.S. Nos. 46 and 47 of 1939,

respectively, in the Court of the Subordinate Judge of Salem to set aside the compromise decree in O.S. No. 45 of 1926 and to recover

possession of the properties respectively belonging to Chinnasami and Periasami. These two suits also never came up for trial. Compromise

decrees were passed on 14th December, 1940, in terms agreed upon between the contesting parties vide (Ex. P. 8-a). The preamble to the terms

of the compromise was more elaborate than in the compromise which concluded O.S. No. 45 of 1926. It was expressly stated that from enquiries

made it was learnt that Periasami and Chinnasami were as a matter of fact living as members of a joint family without partition being effected even

though as per Court records partition had been effected, that Periasami got the entire properties on the death of Chinnasami and had a right to

make a will and he gave away all the properties by an oral bequest to Appavu, the first defendant, and that there was no ground for having the

compromise-decree in O.S. No. 45 of 1926 set aside. The main terms were that in consideration of the plaintiffs giving up their relief of setting

aside the compromise decree they should be allotted together 10 acres 47 cents, the income of which was to be enjoyed in equal shares by them

for their maintenance. Meenakshi died on 26th August, 1942 and on 17th November, 1943, her daughter the plaintiff, commenced this litigation

with a petition for leave to institute the suit in forma pauperis. This petition was subsequently registered as a suit O.S. No. 33 of 1944 on the 13th

March, 1944 and was decreed on 29th March, 1945.

The main pleas of the legal representatives of the first defendant were firstly, that though Chinnasami and Periasami were divided in 1896 shortly

after the decree in the partition suit, they became reunited and lived as members of a joint Hindu family and on the death of Chinnasami in 1926,

Periasami became entitled to all the properties by survivorship; secondly, the compromise in O.S. No. 45 of 1926 is binding on the plaintiff as it

was a true, bona fide and voluntary compromise and also operated as a bona fide settlement of doubtful claims.

The following issues cover the first plea:

(1) Was there any reunion between Chinnasami and Periasami?

(2) If the reunion is true, has plaintiff any right of suit?

There can only be one answer to the question raised by issue 2, namely, that if the reunion is true, the plaintiff must fail in her action. Whatever right

Periasami''s widow might have if the oral will set up by the first defendant is not true, the plain-tiff''s mother, Meenakshi, would have had no rights

except the right to maintenance, and the plaintiff herself would have no right whatever.

It is a matter of admission by defendants 12 to 15, the legal representatives of the first defendant, that the decree in O.S. Nos. 24 and 25 of

1896 disrupted the joint status between Chinnasami and Periasami. A perusal of Ex. P.-1 the compromise clearly demonstrates the fact that there

was a division inter se between each of the four brothers. There is a separate list for each brother with provision for separate enjoyment. From the

allegations in the two plaints in O.S. Nos. 24 and 25 of 1896 it also appears that in pursuance of the award made by the arbitrators in O.S. No.

10 of 1892, each brother was put in possession of at least some of the properties which fell to his share according to the award (vide para-graph 6

of Ex. D-22 and paragraph 6 of Ex. D-22-a). The question then is whether as alleged in the written statement of defendants 12 to 15, Chinnasami

and Peria-sami became reunited "" shortly after the decree "". No further details are given as to the date from which they lived as members of a

reunited family. It must also be observed that though the present written statement contained a specific plea of reunion in fact shortly after the

decree, in the earlier written statement filed by the first defendant in O.S. No. 45 of 1926 the plea was put differently, in paragraph 3 (Ex. P. 5-a)

thus:

...As between Periasami Kandar and Chinnasami Kandar, there was only a paper partition and it was never acted upon. The lands of the two

brothers were never divided by metes and bounds nor were they at any time enjoyed separately by them. The two brothers continued as members

of a joint family and inasmuch as there was a formal partition they should be deemed in law to have become reunited and all the incidents of a joint

family attach themselves with the result that after the death of Chinnasami Kandar, Periasami Kandar became entitled to the whole property by

virtue of survivorship.

In a later written statement in O.S. No. 46 of 1938 (Ex. P.-8) the plea was identical with the plea set out in the present written statement.

Be that as it may, as the case now specifically put forward by the contesting defendants is a reunion shortly after the decree in O.S. No. 24 of

1895, it is necessary to deal with it. It is now well established that after a partition, the presumption would be against a reunion and that a reunion

must be strictly proved as any other disputed fact. Reunion can be proved by subsequent conduct of the parties, but to establish it, it is necessary

to show not only that the parties already divided lived together, but that they did so with the intention of thereby altering their status and forming a

joint estate with all its usual incidents. (Vide Mukku Venkataramayya Vs. Mukku Tatayya alias Vasudevudu and Others,

Though there was some oral evidence adduced on behalf of the appellants in the lower Court, their learned advocate did not place any reliance

on it before us.

He also frankly conceded that there was no positive documentary evidence on record to establish reunion. He relied almost entirely on certain

statements made by Meenakshi, the plaintiff''s mother, both as admissions and as statements admissible u/s 32(3) of the Indian Evidence Act.

Chronologically, the first of such statements is contained in a report of the village magistrate of Nanjai Edayar village on 19th June, 1926 (Ex. P. 4-

a) five days after the death of Periasami. Five individuals including Meenakshi and Vellayyammal the widow of Periasami, appeared before him

and deposed among other things that Appavu, the first defendant was trying to commit trespass on property belonging to them without any manner

of right, that a civil suit had been instituted about 30 years ago and a partition was brought about and pattas also issued, and that they had been in

enjoyment of the remaining property separately. The ladies requested the munsiff to make necessary arrangements to safeguard their properties

and their persons. There is certainly nothing in this report to help the appellants. But they rely on a statement made in writing by the plaintiff''s

mother Meenakshi, on the same day, Ex. D-1. The material part of the statement is as follows:

We five individuals, that is to say, the five individuals referred to in the report of the village munsiff went to-day and represented to the village

munsiff. The facts set out therein are true. My husband and late Periasami Kandar remained as members of a joint family up to this date... A

partition has been effected between the said Appavu Kandar vagaira and ourselves. Karar also has been entered into. We request that our

properties may be safeguarded....

The Tamil original for the words "" as members of a joint family "" are"" We do not agree with the appellant''s contention that there is any admission

on the part of Meenakshi that subsequent to the division in 1896, the two brothers became reunited. It is common ground that after Chinnasami''s

death, Periasami was himself in management of the properties of his divided brother as Meenakshi had no other male help. Moreover, we do not

consider it safe to place much reliance on this statement alone without taking into account the statement recited in the report of the village

magistrate and the statement made by Meenakshi on oath before the Sub-Magistrate on 20th June, 1896 (Ex. P.-4-c). Therein she categorically

stated as follows:

The deceased Periasami Goundan and my husband are brothers. Partition had been effected between brothers. But on my husband''s death,

Periasami Goundan himself was in management of my properties also... My properties also are together with the deceased Periasami Goundan''s.

On the same day, Vellayyammal, the widow of Periasami also made a. statement on oath before the Magistrate Ex. D-2 in which she said:

A deed of partition had been entered into between my husband and Chinnasami Goundan, younger brother of my husband. But both the families

are living together. My husband had.been managing the properties of my husband''s younger brother also.

In the proceedings passed by the Second Class Magistrate, Paramathi, u/s 144, Criminal Procedure Code, on 21st June, 1896 (Ex. P.-4- f) he

says that, Chinnasami died more than 20 years ago and that though divided from him, his properties had been managed by Periasami himself, with

whose family the members of Chinnasami''s family also lived. Having regard to all these contemporaneous statements, it is impossible to understand

the statement in Ex. D-1 to mean that Meenakshi admitted that there was a reunion between Chinnasami and Periasami after the partition decree in

1896.

The statements of Meenakshi in Ex. P.-4, the power-of-attorney, and in Ex. D.-4, the plaint in O.S. No. 45 of 1926, do not certainly help the

appellants. Paragraph 6 of the later is unequivocal and runs thus:

On the death of the said Chinnaswami Kandar his properties devolved upon the second plaintiff, his widow, but the same was entirely under the

control and management of the said Periasami Kandar.

It has already been mentioned that this suit ended in a compromise. In the razi-nama, Ex. D-5, in terms of which a decree was passed, there is no

statement about reunion.

The only other statement made by Meenakshi on which considerable reliance was placed by the appellants is contained in the memorandum of

compromise filed in O.S. No. 46 of 1939 (Ex. D-24). The material portion occurs in the preamble:

... Whereas from enquiries now made by us in the viillage it is learnt that Periasami Kandar and Chinnasami Kandar... were as a matter of fact

living as members of a joint family without partition being effected even though as per Court records partition had been effected, whereas after the

demise of the said Chinnasami Kandar, Periasami Kandar got the entire properties and was in enjoyment of the same.

It must not be forgotten, however, that this compromise was filed in a suit insti-tuted by Meenakshi herself to set aside the compromise decree in

O.S. No. 45 of 1926.

It is difficult to see how the statement can be taken as an admission of reunion between the two brothers binding on the plaintiff. The plaintiff

does not claim title under her mother. She is not her mother''s representative in interest. The learned Advocate for the appellants in the alternative

contends that the statement would be a statement against the interest of Meenakshi and therefore would be admissible as substantive evidence u/s

32(3) of the Indian Evidence Act. Assuming that it is admissible as such, we find it very unsafe to place any reliance on it, as Meenakshi has never

been consistent in her statements. She has made unambiguous statements against the case of reunion put forward by the appellants at other times,

and that fact should not be completely overlooked in assessing the value of any statement made by her in the memorandum of compromise filed in

1940.

The appellants have therefore failed to establish the case of reunion set up by them in their written statement. But apart from any onus of proof,

there is sufficient documentary evidence on record to conclusively establish that there could never have been any reunion between Chinnasami and

Periasami. There can be no doubt that the decrees in O.S. Nos. 24 and 25 of 1896 effected a severance in status between the two brothers, if the

prior award had not already done so. Ex. P-2 is a list of documents purported to have been executed by or to Chinnasami alone between 1896

and 1904. Ex. P-3 is a similar list relating to Periasami for the period from 1st January, 1896 to 31st December, 1906. These lists show that each

brother was having separate transactions of his own. Such independent transactions during a long period up to the date of the death of Chinnasami

render it extremely improbable that Chinnasami and Periasami were living together as members of a reunited joint family. The conduct of parties

after Chinnasami''s death in or about 1907 is very significant. We have in evidence extracts from the Chitta of Najai Edayar village, Exs. P-9 and

P-10 series, which show that pattas 106 and 309 stood in the name of Meenakshi while pattas Nos. 67, 151 and 142 stood in the name

Periasami. The pattas in the name of Meenakshi contained lands which went to the share of Chinnasami according to the partition decree, while

Periasami''s patta included lands which fell to his share. Appavu, the first defendant, in the written statement filed by him in O.S. No. 46 of 1939

(Ex. P-8) admits these facts in paragrah 5, but states that though the management of the properties was with Periasami the pattas of some of the

properties stood in the name of Meenakshi and that it should have been for some ulterior purpose. What that ulterior purpose was he does not say.

The transfer of patta in favour of Meenakshi after her husband''s death is impossible to reconcile with a state of reunion between the two brothers.

There is thus not only no evidence on behalf of the appellants to establish reunion, there is positive evidence that there never was any reunion in

fact. We have no hesitation in agreeing with the finding of the trial Court on this point.

Issue 3 covers the next plea of the appellants. It runs as follows :

If the reunion is not true, are the compromises entered into by the plaintiff''s mother with the first defendant binding on plaintiff or are the family

arrangements binding on plaintiff?

Several decisions of the Judicial Committee as well as the Courts in India were cited by learned Counsel on either side on this point. From these

decisions, the following propositions can be held to be fairly established:

(1) Where the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in

the absence of fraud or collusion, binding on the reversionary heir. (Kathama Nachiar v. Rajah of Sivaganga (1863) 9 M.I.A. 539 and

Vaidhyalinga Mudaliar v. Srirangathanni (1925) 49 M.L.J. 769 : L.R. 52 IndAp 322 : ILR 48 Mad. 883 (P.C.)

(2) This rule is not limited to a decree in a suit contested to the end, but would also extend to a decree based on a compromise, provided the

compromise was made bona fide for the benefit of the estate and is reasonable and prudent. The limited owner is not bound at her peril to pursue

litigation to the ultimate Court of Appeal. (Mohendra Nath Biswas v. Shamsunnissa Khatoom (1914) 27 I.C. 954, Ramsumran Prosad v. Shyam

Kumari (1922) 44 M.L.J. 751 : L.R. 49 LA. 342 : ILR 1 Pat. 741 (P.C.) and Raoji Rujia v. Kunjalal Hiralal (1930) 58 M.L.J. 720 : L.R. 57

IndAp 177.

(3) A compromise is a fortiori not bona fide if it was entered into solely for the personal advantage of the widow or if the benefit under the

compromise was secured by a party without any belief that he had a valid claim. (Kondama Naick v. Kandaswami Gounder (1923) 46 M.L.J.

172 : L.R. 51 IndAp 145 : ILR 47 Mad. 181 (P.C.) and S. Appaswami Pillai (deaceased) and Others Vs. Thayammal alias Thaiyamuthu Achi

and Another, .)

(4) A compromise, the terms of which amount to an entire abandonment by the limited owner of the rights of the reversion, cannot be binding on

the reversioners. (Imrit Kanwar v. Roop Narain Singh (1880) 6 C.L.R. 76.)

It was contended by Mr. T.M. Krishnaswami Aiyar, the learned advocate for the appellants, that the only condition which had to be satisfied

for a compromise by a limited owner to be binding on the reversioner was that the compromise should be bona fide in the sense that it was not a

dishonest compromise and it was not brought about solely for the personal advantage of the limited owner. We are not inclined to agree with him

that this is a complete statement of the law applicable to the case. A compromise entered into by a limited owner on behalf of the estate cannot be

binding on the reversioner unless it is "" reasonable and prudent and for the interest of the estate"". In every reported case, the Court has examined

the terms of the compromise to ascertain whether in the circumstances of the parti-cular case the terms could be held to be reasonable and prudent

and for the benefit of the estate.

In Ramsumran Prosad v. Shyam Kumari (1922) 44 M.L.J. 751 : L.R. 49 IndAp 342 : ILR 1 Pat. 741 (P.C.), certain Immovable properties

were brought to sale by a Hindu widow under a mortgage decree for Rs. 1,47,000 obtained by her in a suit commenced by her deceased

husband, and she purchased them at the auction for Rs. 65,075. The judgment-debtors filed objections to the sale, and the widow entered into a

compromise with them whereby they were allowed to sell four of the properties for Rs. 66,000 to be paid over to her, and she was allowed to sell

the other two properties, which were likely to realise Rs. 5,000. Their Lord-ships of the Judicial Committee discussed the value of the property

released, and after coming to the conclusion that all that the widow gave up was Rs. 3,000 out of Rs. 69,000 to buy off the opposition of the

judgment-debtors, their Lordships then held that the terms were in the circumstances reasonable. It is sufficient to refer to the latest reported case,

on the point, of our Court, namely, Sathi Perireddi and Others Vs. Selagasetti Venkatraju, being minor by next Friend, Bodem Ayyanna and

Others, , in which a compromise by the widow was upheld because in the opinion of the learned Judges,

she acted properly and providently in partially recognising those (opponents'') claims and'' in entering into a settlement whereby she secured and

retained a substantial portion of the estate and avoided a costly and protracted litigation with its attendant uncertainties.

We have not come across any case in which a Court has upheld a compromise made by a limited owner without holding that the terms of the

compromise were reasonable and for the benefit of the estate.

That a compromise the result of which is a complete negation of the rights of the reversion cannot be held to be a compromise binding on the

reversioners is illustrated by two decisions of the Privy Council. One of them is in the early case of lmrit Kanwar v. Roop Narain Singh (1880) 6

C.L.R. 76. In that case, a claim was made in virtue of an alleged adoption to the estate of the deceased Hindu. The widow made a compromise

with the claimant wherein the adoption was admitted, the widow was allowed to enjoy the entire property for her life without power of alienation,

and after her death the ancestral estate was agreed to be taken by the claimant and not by the daughters who would have been entitled to it if the

adoption were not true. The Judicial Committee held that the daughters who were the reversioners could not be bound by this compromise.

Referring to this case, their Lordships in Ramsumran Prosad v. Shyam Kumari (1922) 44 M.L.J. 751 : L.R. 49 LA. 342 say as follows:

In a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have titles after

her, the widow gave up her daughters'' rights in consideration of her own remaining practically unimpaired. Such a compromise obviously could not

stand; indeed it is not a compromise at all.

The other decision is in Nathulal v. Babu Ram (1936) L.R. 6.3 IndAp 155 (P.C.). Though the actual decision in the case is not directly in point,

there are observations which are extremely apposite to the facts of the present case. On the death of one of two brothers, members of a joint

Hindu family, the surviving brother claimed that he had been joint with his brother and that the whole of the property passed by survivorship to him,

so that the widow of his deceased brother took nothing by inheritance. The matter was referred to arbitrators who, by their award, which was

signed by both parties in token of acceptance, and which found that the two brothers had been joint, divided the joint property between the parties

in certain unequal proportions. It was found by their Lordships that the brothers were undivided and the property passed by survivorship to the

surviving brother. On that footing, their Lord-ships upheld the award. But then they proceed to consider what the decision would have been if the

facts had been otherwise. Their Lordships say:

No doubt, had the facts been that Ji Sukh at the time of his death was separated from his brother,''this award could have availed the plaintiffs

nothing against a claim by Ji Sukh''s reversioners. On the face of the transaction it is not such a compromise by a Hindu widow as could be held

binding upon her husband''s reversioners. In the present case, however, as it has been established that Ji Sukh at the date of his death left no

heritable interest in the property in suit, the sole question decisive of the rights of the parties is the true construction of the bargain made by

Mussamat Jamma (widow) with Ram Sahai... By the bargain which she drove the reversioners of her husband were not damnified. She did not

bind them or represent them, and she was not their agent or trustee to acquire property for her husband''s estate.

In the light of these decisions, it cannot be said that the compromise entered into by Meenakshi Ammal with the first defendant was for the benefit

of the estate or was reasonable and prudent. She was evidently well aware of her rights. She refers to the fact of partition and separate living in her

statements before the village munsiff and before the Magistrate. She must have been aware of the transfer of patta in her name in respect of her

husband''s properties after his death. The Sub-Magistrate who had passed proceedings u/s 144 of the Criminal Procedure Code, observed that

the brothers, Chinnasami and Periasami, were divided from each other, but after Chinnasami''s death his properties had been managed by

Periasami, with whose family the members of Chinnasami''s family also lived. In Ex. P-4, the power-of-attorney, there is an unambiguous recital

that after Chinnasami''s death his moveable and Immovable properties and money dealings belonging to him were being enjoyed by Meenakshi by

right of heirship, but as she was a female and found it difficult to be in management, Periasami was managing them at her request. In the leases

executed in July, 1926 (Exs. P-6 and P-6-b), the fact that some of the lands covered by them were comprised in a patta standing in the name of

Meenakshi Ammal is expressly mentioned. The plaint in O.S. No. 45 of 1926 contains a definite statement of her case. All these facts must have

been known to Appavu also. While so, it is difficult to understand the conduct of the widows, hardly six months after the insti-tution of the suit. The

only thing that happened appears to be that the widows began to suspect the conduct of Nataraja Kandar who had been helping them in the

management of their properties and in the conduct of the litigation. The widows cancelled the power-of-attorney in his favour on 8th December,

1926 and two months thereafter entered into the compromise. Analysing the terms of the compromise, they come to this : the widows completely

abandoned all their claims to the entire properties left by both Chinnasami and Periasami. There is a mention of the right of the widows to

maintenance, but there is no definite provision in regard to this. Mention is only made in the negative way, namely,

Plaintiffs 1 to 2 have no other right in the properties except the right to maintenance.

The only right asserted on behalf of the first defendant is on the basis of the dying wish of Periasami. There is no recital of a reunion between

Chinnasami and Periasami. The dying wish, even if it were translated into an oral will, might cover the properties belonging to Periasami, but the

properties left by Chinna-sami would not be affected by it unless there had been a reunion and they had passed by survivorship to Periasami. This

fact is not even alleged. The result of the compromise is that the first defendant gets every thing and the widows practically nothing. Their right to

maintenance is not a big concession by the first defendant, because he had never denied that obligation. We have now held that there was no

reunion between the two brothers. A compromise by which the entire right of the reversion was surrendered without any corresponding benefit to

the estate can in no sense be held to be reasonable or prudent. It may be that the widows, without any adequate help, were unable to successfully

fight the power-ful Appavu. It may be they wanted to be left in peace with a provision for their maintenance. If so, they were then only looking to

their personal advantage and not to the interests of the estate. In a case similar to this, Nirman Bahadur v. Fateh Bahadur ILR (1939) All. 178,

Mukerji, J., went to the length of holding that in entering into such a compromise she was not representing the estate. The learned Judge says,

Where, by way of compromise, the widow says that her husband died joint with the opposite-parties and, therefore, she is not entitled to

possession and is entitled only to a maintenance, it cannot be said that the widow '' represented the estate '' and a compromise honestly arrived at

by her would bind the reversioners. The reason is very simple. The moment the widow says that her husband died joint, she disclaims all title to

represent her husband''s estate for on her own admission there is no estate to represent.

Whether this extreme view is maintainable or not, it is evident that such a compromise cannot be a reasonable and prudent compromise. We agree

with the learned trial Judge that a compromise was not binding on the reversioners.

The fact that subsequently Meenakshi Ammal attempted to have the compromise decree set aside but again compromised that suit accepting

the original compromise does not carry the matter any further. Under the latter compromise, she obtained about 5 acres to be enjoyed by her

during her lifetime in.lieu of her maintenance but this fact cannot render the compromise valid. It may be recalled that in the case of Imrit Kanwar v.

Roop Marain Singh (1880) 6 C.L.R. 76, the widow obtained an estate for life in the entire properties. Nevertheless, the Judicial Committee held

that the compromise was not binding on the reversioners.

Mr. T.M. Krishnaswami Aiyar, the learned advocate for the appellants strongly relied upon certain decisions as supporting his case. The first

of such decisions is that in Mohendranath Biswas v. Shamsunnessa Khatun (1314) 27 I.C. 954. In that case, a suit was filed by two daughters

claiming certain lands as forming part of the estate of the last male holder, their father. That suit was dismissed by the trial Judge on the ground that

the claim was not established on the merits and that it was. barred by limitation. An appeal was preferred by one of the daughters, but it was

withdrawn by her. It was found that the withdrawal was not the result of any collusion, but it was contended that that withdrawal was in the nature

of a compromise and was therefore not binding on the reversioner. Repelling this contention, the learned Judges say that the view cannot be

defended on principle that a qualified owner like the Hindu widow, daughter, or mother, is bound at her peril to pursue a litigation in respect of the

estate in her hands unremittingly to the ultimate Court of Appeal and that she cannot bona fide effect a settlement of the matter in controversy

even though such a compromise be in the best interest of the estate.

In this case, there was a decision of a competent Court against the limited owner and she did not pursue the matter in the ultimate Court of Appeal;

it cannot be said that her action was unreasonable or imprudent. In the case before us, no attempt was made to have a fair trial. The decision of the

Judicial Committee in Risal Singh v. Balwant Singh ILR (1918) All. 593 was relied on by him. But on an analysis of the facts of that case, it is clear

that the principle of that decision has no application to the facts of the present case. There, a Hindu widow adopted a son to her husband. A

reversioner challenged the adoption in a suit in which she pleaded that she had authority to make the adoption and that it was valid. The suit was

dismissed because the plaintiff was found not to be a reversioner. The widow thereafter brought a suit against the adopted son to set aside the

adoption on the ground that she did not have authority from her husband to adopt and even denied the adoption. The adopted son contested the

suit, and it was decided by the Courts in India that the widow was estopped from maintaining her plea. On appeal, the Privy Council raised an

issue as to her authority to adopt and held on the evidence that the adoption was valid. In a subsequent suit by an alleged reversioner to the estate

of her husband against the adopted son, it was held notwithstanding the personal estoppel which bound her the widow did represent the estate on

the question of fact as to whether the defendant had or had not been validly adopted and that she represented it within the meaning of the rule laid

down in the Siva-ganga case2. It is enough to mention that in that case the adoption was held valid after a "" fair and honest"" trial on the merits, to

distinguish it from the present case. The decision in Ravji Andu Nikam v. Rama Krishna Mane AIR 1928 Bom. 14 was rendered after the ruling of

the Privy Council in Ramsumran Prasad v. Shyam Kumari (1922) 44 M.L.J. 751 : L.R. 49 IndAp 342 : ILR 1 Pat. 741 (P.C.) and does not carry

the matter any further. In that case, a person died leaving a will under which he devised his entire estate to his sister''s son but left behind him his

widow and daughter. After his death, the matter was referred to arbitrators. The widow admitted the will, but her contention was that it was

effective only if the daughter were married to the legatee. An award was made and a decree followed thereon. In a suit filed by the adopted son of

the testator it was contended that the widow had no legal authority to admit the will. This contention was repelled. There is nothing in law which

precludes a widow from admitting a fact. If her husband really left a will, it would be exceedingly strange to hold that law compels her to deny the

will and to carry on a litigation impeaching the will. There was no dispute as to the genuineness or validity of the will. The learned Judges held that

the course she took apparently was a reasonable one in the interests of the estate. The learned Judges point out that the matter was fairly and bona

fide considered at the time of the award and decree, and it was not till many years afterwards, when the parties began to quarrel, that it was

suggested that the will was not a proper will. In the case before us, the facts are just the reverse. We start with a dispute and with a definite

assertion on behalf of the widow of a case which we have found to be established. There was no fair consideration of the claim of the estate which

was practically abandoned. This decision cannot help the appellants. Nor we do think that the decision in Rani Bhuneshwari Koer Vs. Secretary of

State, helps the appellants. It was there laid down that an admission of fact by a widow creating an estoppel, as opposed to an admission of law

will, in the absence of fraud or collusion, create an estoppel which will bind the reversioners. In a suit by a lessee against a widow for possession of

property leased to him by her husband, the widow admitted the lease and a decree was passed fairly and properly. It was held that the decree was

binding on the reversioners. There is one statement however, in the judgment of the learned Chief Justice which is decidedly against the appellants.

At page 376 Courtney Terrell, C.J., says:

Nor was the decree passed on the basis of a compromise by Asmedh Koer. Had it been so, the appellant might justly have urged that it was one

which did not bind the reversioners.

There remains only the question whether the plaintiff has established that the items claimed by her belonged to her father, Chinnasami at the time of

his death. The appellants do not dispute certain of the items. We shall deal in brief with respect to the items disputed by them. Items 1, 2, 3, 7 and

8 are not found in the list of properties set apart for Chinnasami in Ex. P-1 the compromise. This may be so, but we know that Chinnasami was

acquiring properties subsequent to the partition. We find all these items mentioned in Ex. P-9, an extract from the Chitta for 1918, as being

comprised in the patta in the name of Meenakshi. The same consideration applies to the extent of item 9 which according to Ex. P-1 was only 5.31

acres, whereas the extent in Ex. P-9 is 7.55 acres, which is the extent now claimed. As regards item 17, there does not appear to be any

difference between learned Counsel on either side here, and the learned Advocate-General has no objection that the decree may be so modified as

to make it clear that only one half of item 17 should be recovered by the plaintiff. The appellants object to items 11 and 13 on the ground that only

half of these items fell to the share of Chinna-sami, but this objection was based evidently on a mistake, and there is no substance in this objection.

In respect of items 10, 14 and 16 the learned Advocate-General admits that on the evidence on record it is not manifest how they came to be

owned by Chinnasami. We therefore call for a finding from the learned Subordinate Judge whether these items or any of them form part of the

properties left by Chinna-sami. The parties should be permitted to adduce additional evidence as regards those items only. Time for return of

findings two months; one week for objections thereafter.