Kuar Mata Prasad and another vs (Kuar) Nageshar Sahai and others

Mr. Ameer Ali, J.

The litigation relates to two properties named respec tively Baragwan and Wali, one situated in the district of Hardoi and the other in Kheri, in the province of Oudh. Both belonged to one Raja Fateh Chand who died in 1873. After the annexation of Oudh they were re-granted to Fateh Chand and his name was included with regard to the Hardoi property under List II and in respect of the Kheri property under List V, prepared under Act I of 1869 (the Oudh Estates Act). To these Lists reference will be made more particularly later on in this judgment.

The above genealogical table will ex plain the position of the parties in this case : Mata Prasad, the Plaintiff No. 1 claims possession of the properties in question on various grounds, which will be set out later. The second plaintiff is the assignee of Mata Prasad of a share in the two es tates. In this judgment wherever the plaintiff is mentioned it refers to Mata Prasad.

Act I of 1869 came into force in January of that year " and in March following Raja Fateh Chand purported to make a will, under which he devised the Kheri property, in other words, the Wali estate, to his eldest son, Amir Chand" and the Hardoi property, the Baragawn estate to the younger son, Wazir Chand. So far as ap pears on the record, Amir Chand and Wazir Chand appear to have been placed in possession of the two estates respective ly. Raja Fateh Chand died, as already stated, in 1873" but the will he had made in 1869 was never registered under the provisions of S. 13 of the Act, which re quires a will in favour of a younger son of the Talookdar whose name does not ap pear in the third or fifth of the lists men tioned in S. 8 to be registered within a certain specified time. This section will be referred to later. Consequently, it is not disputed, that the bequest to Wazir Chand, the younger son, was invalid and inoperative. He, however, remained in possession of the Hardoi estate until his death on the 11th November 1887.

Amir Chand, the eldest son of Fateh Chand, had died two months earlier, viz., on the 26th September 1887, as the will in his case did not require registration" the device in his favour was valid in law and operative.

Wazir Chand left him surviving a widow named Chandra Kuar who appears, on his death, to have taken possession of the Hardoi property. Chandra Kuar died on the 19th of March 1915.

On the death of Amir Chand, as already stated, his son and hair, named Narindra Bahadur, succeeded to the Kheri estate. In 1897 he brought a suit against the widow of Wazir Chand for a declaration of his own title as regards the Hardoi estate and for possession of the property. To the particulars of his claim their Lordships will refer more fully later on. It is sufficient at this stage to say that he based his title to the Baragawn estate on the allegation that it was subject to the provisions of Act I of 1869 and that he was entitled to it in pre ference to Chandra Kuar, Wazir Chand''s widow. In the alternative, he alleged that, even if the estate was not governed by the provisions of the Act and was subject to the Hindu Law, pure and simple, the property devolved on him on the death of Wazir Chand, his uncle, as they were joint and undivided at Wazir''s death. The Subordinate Judge in that case held that the property was subject to the provisions of Act I of 1869 and that the plaintiff Narindra Bahadur was entitled to it in preference to Chandra Kuar. He accord ingly decreed the plaintiff''s claim. On appeal to the Judicial Commissioner''s Court it was held the property in dispute was not subject to Act I of 1869. The decree of the Subordinate Judge was ac cordingly reversed and the case was re manded for the purpose of deciding whe ther the claim of Narindra Bahadur was well-founded on the alternative ground, namely, that under the law of the Mitak shara, to which the parties were subject he was entitled to the property.

Before the trial on the remand the par ties compromised the dispute and a decree was made on the 20th December 1899, in accordance with the settlement at which they had arrived. Reference will be made later to the terms of the settlement, as one of the questions raised in the pre sent litigation relates to the power of Chandra Kuar to enter into that compro mise.

Narindra Bahadur died on the 18th June 1905, leaving him surviving his widow, Jagrani Kuar. Shortly after his death Jagrani Kuar propounded a will alleged by her to have been executed by Narindra Bahadur on the 23rd October 1904, giving her power to adopt a son to him.

On the 30th April 1906, one Raja Durga Prasad claiming to be a reversioner of Narindra Bahadur, brought a suit against Jagrani Kuar in the Court of the Sub ordinate Judge of Kheri for a declaration that the will propounded by her as the will of Narindra Bahadur was a forgery and that he was entitled to the estate by virtue of his reversionary right Durga Prasad''s suit had a chequered career. His claim was dismissed by the Subordinate Judge on the ground that the will was genuine and had been duly exe cuted by Narindra Bahadur, The decree of the Subordinate Judge was reversed on appeal by the Judicial Commissioners who held, chiefly as it appears, on suspi cion, that the will was not genuine. They accordingly decreed the claim of Raja Durga Prasad.

Jagrani Kuar appealed to His Majesty in Council from the decree of the Judicial Commissioners, and on the 3rd December 1913, it was held by their Lordships on a careful examination of the evidence relating to the execution of the will that it was fully established to be the act of Narindra Bahadur. The decree of the appellate Court was accordingly set aside and that of the Subordinate Judge dismissing the suit of Durga Prasad was restored.

Narindra Bahadur''s will having been thus finally declared to be valid, Jagrani Kuar, in conformity with the power en trusted to her by her deceased husband, adopted on the 22nd May 1914, the defen dant Nageshar Sahai as the son of Narindra Bahadur.

On the 20th of April 1918, the present suit was instituted by Mata Prasad and his assignee, Plaintiff No. 2, in the Court of the Subordinate Judge of Hardoi for the possession of two estates lying, respectively, in the Hardoi and Kheri Districts, with a declaration regarding Mata Prasad''s title.

It is desirable to notice briefly the alle gations on which the claim is founded and on which the long and ingenious arguments in the course of the trial mainly rest.

In para. 12 of the plaint it is stated that the Baragawn and Wali (Sarawan) estates "are subject to Act I of 1869," and that the plaintiff, Mata Prasad, as the oldest member of the senior branch, is entitled to them with their appurtenances. In para. 13 he claims alternatively that even if Baragawn "be not deemed" subject to the Act, he is entitled to the same by virtue of the custom.

The reason of this alternative claim will be clear as the judgment proceeds.

He asked, accordingly, for a declaration that the adoption of Nageshar Sahai was invalid and that the will under which Jagrani Kuar purported to make the adop tion was false.

The first defendant, Nageshar Sahni, is, as already stated, the alleged adopted son of Narindra Bahadur. The other two defendants are the sons of Narindra''s sister, who acquired title to certain portions of the estate under his will. Both sets of defen dants dispute the title of the plaintiff, Mata Prasad. Nageshar Sahai further contends that the plaintiff''s claim is barred by the rule of res judicata arising out of the deci sion in Raja Durga Prasad''s case, and con sequently in respect of the Hardoi estate it is not maintainable. With regard to the assertion that the Baragawn estate is sub ject to Act I of 1869, the defendants further contended that the will of Fateh Chand, executed in March 1869, under which the testator had purported to devise the Hardoi estate to Wazir Chand was never registered and consequently it had gone out of the operation of Act I of 1869 and succession so far as that property was concerned, was governed by the general provisions of the Hindu Law. They also denied the exist ence of any custom such as the plaintiff alleged in paras. 12 and 13 of his plaint. In answer to the defendant''s allegation that the will of Fateh Chand was not opera tive as it was never registered, the plaintiff averred that if the will of 1869 was invalid there was a prior will made in 1860 the terms of which were formulated or embodi ed in the village administration papers, call ed wajib-ul-arz" and he claimed that effect should be given to that will.

He further urged that even if the estate went out of the operation of Act I of 1869 in consequence of the non-registration of the will it was brought back under the Act on the passing of the amending Act III of 1910. The arguments in support of this contention have occupied a great deal of the time of the Courts in India and of this Board.

Their Lordships, however, propose to confine their attention to the principal contentions advanced before the Board.

The Subordinate Judge of Lucknow, be fore whom the case came on for trial, raised a large number of issues which he has discussed at considerable length in his judgment. In dealing with the plea of res judicata based on the decision in Durga Prasad''s suit he adopted what ap pears to their Lordships an unprecedent ed and irregular course : he refused in fact to be bound by the decisions of the Judi cial Committee. To show the mistake in to which he has fallen, their Lordships cons ider it desirable to refer to two passages in his judgment : "Granting on the basis of these authori ties that the widow represents the entire estate which consists of herself and the reversioners, I am unable to see how it follows that one reversioner in a suit against the widow represents the entire body of the reversioners. The commonly accepted position of the reversioners is that one does not claim through the other. Obviously, therefore, the judgment in a suit between one reversioner and any other person, widow or some other person, does not stand as a bar to the trial of the same ques tion as between another reversioner and the same person on the other side in another suit. I do not see how this principle is changed in this particular case before me.

The basis of this general principle is that the title of one reversioner is quite separate from and independent of the title of any other reversioner. It is all the more so in the present case as the first plaintiff''s title has originated in a special legislation of Act III of 1910 of the United Provinces Council, the Act amending Act I of 1869. He was not one of the reversioners, at any rate immediate reversioners of the property at the time the suit was brought by Durga Prasad. He had no title as a reversioner. His title arose on the passing of the Act in the year 1910. It passes my comprehen sion how a person can be said to be de barred from setting up a title in a suit, when that title had no existence at the time at which any other litigation took place concerning the property to which the title relates. To my mind the present suit could hardly be said to be barred even if the present Plaintiff No. 1 had himself been the plaintiff in place of Durga Prasad. The requirements of litigating under the same title,'' would be wanting for con stituting the bar of res judicata."

The reference at the end of the passage quoted to Act III of 1910 appears futile, for the cause of action and the charge res pecting the genuineness of Narindra Bahadur''s will are the same as in the pre vious case.

On this reasoning he refused to be bound by the decision of the Board in Venkata narayana Pillai v. Subbammal AIR 1915 PC 124: 38 Mad 403 : 42 IA 121 : 17 MLT 435 : 28 MLJ 535 : 17 Bom LR 468 : 19 CWN 641 : 2 LW 596 : (1915) MWN 555 : 21 CLJ 515 (PC).

Regarding the genuineness of Narindra Bahadur''s will, the authenticity of which was declared by the Judicial Committee in 1913, the Subordinate Judge expressed himself as follows :

"I have never entertained any doubt on the question and I have no hesitation in holding upon this issue that the trial of the genuineness of the will of Narindra Bahadur is not barred by the judgment in the case between Durga Prasad and Jag rani."

And again :

"The conclusion at which the learned Subordinate Judge and their Lordships of the Privy Council arrived on the evidence in that case is not warranted by the evi dence in this cage which, besides exposing the position of Khuda Bakhsh and Ganga Prasad, is confined to the actual execution of the will and falls far short of the evi dence produced in that case of the inten tion."

He held accordingly that, the plaintiff''s claim was not affected by the bar of res judicata, either as to the representative character of Durga Prasad''s suit, or by the Board''s decision on the issue of fact relating to the genuineness of the will of Narindra Bahadur, and that he had esta blished his title to the Kheri estate.

He held, however, that, as the will of Fateh Chand was inoperative as regards the Hardoi estate, not having been regis tered under the provisions of S. 13 of Act I of 1869, and S. 13 (a) of Act III of 1910 was not retrospective, the estate was not brought back under the Act of 1869, as the plaintiff contended. He held, therefore, that Mata Prasad failed to establish any title to the same. He accordingly decreed the plaintiff''s claim in respect of the Kheri estate and dismissed his suit with regard to the Hardoi property.

Both parties appealed to the Court of the Judicial Commissioner of Oudh. The learned Judges of the appellate Court were of opinion, as their Lordships think right ly, that the plaintiff''s claim was in fact res judicata and therefore liable to be dismis sed in respect of the Kheri property. They further held, in agreement with the Sub ordinate Judge, that the Hardoi estate was never under Act I of 1869 and was not brought back under the Act by anything contained in the later Act. They according ly dismissed the whole suit

From this decree the plaintiffs have appealed to His Majesty in Council. On the arguments before the Board, the first question for determination centres on defen dants'' plea of res judicata" in other words, whether the proceedings in the suit of Raja Durga Prasad form a bar to the pre sent action by Mata Prasad.

It has been contended before their Lord ships, as it was before the Subordinate Judge who accepted and gave effect to the argument that the reversioners have each an independent cause of action and as none of the reversioners derive title from the others, the result of a suit against the widow and her assignees brought by a reversioner, presumptive, or otherwise, does not bind the others, nor can the suit be considered as brought in a representative capacity. The same argument, though clothed in other words, was presented to their Lordships in the case of Venkata narayana Pillai v. Subbammal AIR 1915 PC 124: 38 Mad 403 : 42 IA 121 : 17 MLT 435 : 28 MLJ 535 : 17 Bom LR 468 : 19 CWN 641 : 2 LW 596 : (1915) MWN 555 : 21 CLJ 515 (PC) where the governing principle applicable to a suit brought by a reversioner in the lifetime of the widow to get rid of a common appre hended danger to the interests of the general body of reversioners, was set out at length. In re-affirming the rule enuncia ted in that case their Lordships desire to observe that so long ago as 1868 Sir Barnes Peacock, then Chief Justice of Bengal, in dicated in the Full Bench case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 1868 9 WR 505 : BLR Sup. Vol. 1008 (FB), the position of the pre sumptive reversioner seeking to get rid of any act of the widow during her lifetime which jeopardized the common interests of the reversioners. Act VIII of 1859 which was then in force in governing procedure, contained no such provision as was em bodied in Expl. 5 to S. 13, Act X of 1877, and afterwards reproduced in Expl. 6, S. 11, of Act XIV of 1882 and Act V of 1908. The words "cause of action," therefore, needed judicial interpretation. Sir Barnes Peacock''s dicta deserve attention. The main question in the case referred to was whe ther adverse possession as against the widow barred the rights of reversioners. The language of the Chief Justice in deal ing with the point is important. He says first : "but reversionary heirs presumptive have a right, although they may never succeed to the estate, to prevent the widow from committing waste."

He then goes on thus :

"It is said that the reversionary heirs could not sue during the lifetime of the widow, and that therefore they ought not to be barred by any adverse holding against the widow at a time when they could not sue. But when we look at the widow as a representative, and see that the reversion ary heirs are bound by decrees relating to her husband''s estate which are obtained against her without fraud or collusion, we are of opinion that they are also bound by limitation, by which she, without fraud or collusion, is barred. When, therefore, we construe the words ''cause of action'' in the Statute of Limitation, we must consider them as referring, not to a new cause of action accruing to the reversionary heirs personally and individually, but to the cause of action which accrued to the heir or repre sentative, for the time being, of the decea sed."

The principle enunciated in Venkata narayana Pillai AIR 1915 PC 124: 38 Mad 403 : 42 IA 121 : 17 MLT 435 : 28 MLJ 535 : 17 Bom LR 468 : 19 CWN 641 : 2 LW 596 : (1915) MWN 555 : 21 CLJ 515 (PC) which was followed in Janki Ammal v. Narayanasami Aiyar AIR 1916 PC 117: 39 Mad 634 : 43 IA 207 : 20 MLT 168 : 31 MLJ 225 : 14 ALJ 997 : (1916) 2 MWN 188 : 20 CWN 1323 : 18 Bom LR 856 : 24 CLJ 309 : 4 LW 530 (PC) is logically sound and "salutary," to use Lord Blanesburgh''s expression in the judg ment in Kesho Prasad Singh v. Sheo Pargash Ojha AIR 1924 PC 247: 46 All 881 : 51 IA 381 : 23 ALJ 168 : 27 Bom LR 130 : 40 CLJ 461 : 47 MLJ 824 : 21 MLW 295 : 6 LR PC 1 : 29 CWN 606 (PC).

Reversioners possess individually what has been called a spes succession is the bare possibility of succeeding to the estate of the last owner in case the widow dies leaving anyone of them surviving entitled to take immediate possession after her, unless, of course, the husband has left the power to her to adopt a son. But the spes is common to them all" so is the danger by the widow''s act against the interests of the reversioners. The right to sue to set aide that common danger is given for obvious reasons of policy and convenience to the person, who, if the widow died at the moment, would take the estate. But the result, favourable or otherwise, affects the reversioners as a body

As pointed out in the case of Venkata narayana Pillai v. Subbammal AIR 1915 PC 124: 38 Mad 403 : 42 IA 121 : 17 MLT 435 : 28 MLJ 535 : 17 Bom LR 468 : 19 CWN 641 : 2 LW 596 : (1915) MWN 555 : 21 CLJ 515 (PC), Ex. 6 to S. 11 of the Civil Procedure Code covers exactly cases of the kind under consideration and bars a fresh litiga tion on the cause of action.

The learned Judges of. the Judicial Commissioner''s Court, in their very able judgment, have set out, in clear terms, the considerations on which the principle is founded.

It has been contended on behalf of the plaintiff that the suit by Durga Prasad was incompetent inasmuch as he was not at the time the presumptive reversioner to Narindra Bahadur. This contention could only have been advanced on a misconcep tion of the facts. Jagrani Kuar, the defend ant in that suit, appears to have taken the same objection that Durga Prasad had no right to maintain the action. The Sub ordinate Judge in the suit of Durga Prasad states first the ground of the claim in these terms : "The plaintiff (Durga Prasad) is one of the reversioners to Narindra Baha dur and Wazir Chand and as such his interest to the said property will suffer if the will is allowed to stand and so he has instituted the present suit, seeking (among others) the following declaratory relief, viz., that the will propounded is a forged document." The learned Judge then pro ceeds to deal with the objection viz., Durga Prasad''s incompetency. Reference to the pedigree would show that the persons standing nearest in degree to Narindra Bahadur were at the time Chandika Prasad and Durga Prasad. The learned Sub ordinate Judge, therefore says in his judg ment : "The sale deed by Chandika Prasad in favour of the plaintiff (Durga Prasad) is evidence sufficient to show that he is unable to sue for want of funds, and so the plaintiff is entitled to sue."

This finding was never, so far as their Lordships can see, impugned in the Judicial Commissioner''s Court or before this Board.

Mata Prasad, the plaintiff in the present suit, is a remote sapinda of Narindra Baha dur. He was in existence at the time when Raja Durga Prasad brought his action. He was aware, as his brother Kesho Prasad swears, of the institution of the suit. There is a nothing to show that the litigation between Raja Durga Prasad and Jagrani Kuar was collusive or vitiated by fraud or laches on the part of Durga Prasad in con ducting the suit or in asserting his rever sionary right. Nothing of the kind is pro ved or even alleged.

The Subordinate Judge dismissed Durga Prasad''s "claim for a declaration of the forgery of the will." But he declared it to be invalid and inoperative in respect of certain bequests in favour of the defend ants other than Jagrani Kuar. On appeal to the Judicial Commissioner''s Court, the decree of the Subordinate Judge affirming the due execution of the will by Narindra Bahadur was reversed, but it was restored by this Board on the 3rd December 1913, which found the will to have been duly executed by the defendant''s husband with the power of adoption.

On a review of all the facts, their Lord ships are of opinion, in concurrence with the learned Judges of the appellate Court, that the suit by Durga Prasad against Jagrani Kuar for a declaration that the will of Narindra Bahadur was false and fabricat ed, was brought by him in his capacity of the presumptive reversioner, and as such the decision in that suit binds the plaintiff, Mata Prasad. His claim as regards the Kheri estate is clearly barred.

Assuming that the claim as to the Baragawn estate in the Hardoi District is not so barred, the question of the plaintiff''s title to this property has to be considered from a different point. He contends, in the first place, that, even if the will of 1869, was invalid for want of proper registration, he could fall back upon the will of 1860, to which reference is made in the docu ment of 1869. Beyond this there is absolute ly no evidence of the fact that Fateh Chand had made any bequest to Wazir Chand in 1860. Reference has been made to a number of documents Called wajib-ul-arz, but they are not statements by Fateh Chand himself. They contain statements by some of his agents, all of whom speak of the mode of descent customary in the family. The Hardoi estate granted to Fateh Chand was placed in List II. This list includes the Taloodkars, whose estates, according to the custom of the family, on or before the 13th February 1856, ordi narily devolved upon a single heir. The purport of the statements contained in the wajib-ul-arz simply referred to the fact that the particular estate which was held by Wazir Chand was descendable to a single heir and nothing more. Whether it was descendable to a single heir or not, the bequest being, invalid owing to want of registration, left the property open and out of Act I of 1869. It was conceded in the appellate Court that unless the plaintiff could show that the property came back under Act I of 1869 by virtue of the pro visions of Act III of 1910, the plaintiff had no right to property. S. 13 of Act I of 1869 is in these terms :-

"No taluqdar or grantee and no heir or legatee of a taluqdar or grantee shall have power to give or bequeath his estate or any portion thereof or any interest there in to any person not being either.

(1) A person who under the provisions of this Act or under the ordinary law to which persons of the donor or testator''s tribe and religion are subject would have succeeded to such estate or to a portion thereof or to an interest therein, if such taluqdar or grantee, heir, or legatee had died intestate, or

(2) A younger son of the taluqdar or grantee, heir or legatee, in case the name of such taluqdar or grantee appears in the third or the fifth of the lists mentioned in S. 8 except by an instrument of gift or a will executed and attested not less than three months before the death of the donor or testator, in manner herein provid ed in the case of a gift, or will, as the case may be, and registered within one month from the date of its execution."

The amendment which was made by Act III of 1910, called the Oudh Estates Act Amendment Act of 1910, S. 6, runs thus :-

"6. After S. 13 of the said Act, the following section shall be inserted namely :

13-A. No taluqdar or grantee, and no heir or legatee of a taluqdar or grantee, and no transferee referred to in S. 14, and no heir or legatee of such transferee, shall have power to bequeath his estate, or any portion thereof or any interest therein

(1) (a) to a person who would have succeeded to such estate, portion or in terest under the provisions of this Act applicable to such estate, had the person so bequeathing died intestate as to his estate at the time when the bequest took effect,

(b) to his daughter,

(c) to a son of his daughter, or

(d) to a younger son, except by a will duly executed and attested"

(2) to a person who might, in the ab sence of other heirs have succeeded to such estate, portion or interest under the provisions of this Act applicable to such estate, had the person so bequeathing died intestate as to his estate, at the time when the bequest took effect, except by a will duly executed and attested not less than three months before the death of the testator and presented for registration within one month from the date of its execution and registered"

(3) to any person other than a person mentioned in Cls. (1) and (2), except by a will duly executed and attest ed not less than three months before the death of the testator and registered according to the law for the time being in force relating to the registration of assur ances, but presented for such registration within one month from the date of its execution."

As the learned Judges of the Judicial Commissioner''s Court point out that section is not retrospective and does not validate a bequest which had already failed. It would be anomalous, to say the least, to suppose that the legislature intended by Act III of 1910 to receive rights that had disappeared in consequence of the failure of the bequest in 1869 when other rights had been created in the meantime.

Section 21 of Act III of 1910 shows clearly that nothing in that Act has the effect which is contended for by the plaintiff. S. 21 says :

Unless there is something repugnant in the saving clause, subject or context.

(a) S. 2, Sub-S. (1) of this Act, with the exception of

(i) Clause (b) of the definition of the word "estate""

(ii) The words "or a mother"" in the definition of the word "heir"" and

(b) Ss. 3, 4, 7 and 8 of this Act, shall operate retrospectively" but noth ing contained in the said sections shall affect suits pending at the commencement of this Act, or shall be deemed to vest in or confer upon any person any right or title to any estate, or any portion thereof or any interest therein, which is, at the commencement of this Act, vested in any other person who would have been entitled to retain the same if this Act had not been passed" and the right or title of such other person shall not be affected by anything contained in the said sections.

In their Lordships'' opinion the conten tion that on the passing of Act III of 1910 the Baragawn estate became once more subject to Act I of 1869 has no substance. With the failure of the bequest the pro perty passed out of the Act and became subject to the Hindu Law.

But it is urged that the compromise bet ween Narindra Bahadur and Chandra Kuar was invalid, inasmuch as the widow had no right to make an assertion that the estate was subject to Act I of 1869 when it was not so. The compromise bet ween Narindra Bahadur and Chandra Kuar bears date the 25th November 1899. Para. 1 recites :

That Chandra Kuar admits that the pro perties in dispute are taluqdari properties, and succession to them will be governed by Act I of 1869 and Kuar Narindra Bahadur is entitled to hold the same as lawful heir of Raja Wazir Chand."

By para. 2 Kuar Narindra Bahadur agreed inter alia to Rani Chandra Kunwar remain ing in possession of the properties in ques tion.

By para. 3 he further agreed that he shall not by any deed or will alienate the said immovable property or his rights in it as long as the said Rani Sahiba remains alive, but if he does so, that alienation shall be null and void.

It is contended that Chandra Kuar had no right to enter into the compromise. Their Lordships are of opinion that the learned Judges of the appellate Court in India are right in regarding it as a family settlement which "was prudent and reason able" under the circumstances, to use the language of Lord Phillimore in the case of Ramsumran Prasad v. Shyam Kumari AIR 1922 PC 356: 1 Pat 741 : 49 IA 342 : 31 MLT 200 : 27 CWN 269 : 3 PLT 749 : 21 ALJ 18 : 16 MLW 956 : LR 4 PC 17 : 25 Bom LR 634 : 44 MLJ 751 : 37 CLJ 356 (PC).

Narindra Bahadur''s suit had been decided in his favour by the Subordinate Judge. On the appeal the Judicial Commissioners had reversed his judgment and remanded the case for the con sideration of the second part of the claim. The matter was still open to another appeal. Under those circumstances, in order to avoid a long litigation and the creation of further burden on the family property, Chandra Kuar entered into a compromise acknowledging Narindra Bahadur''s right to the inheritance after her death, he on his side binding himself not to alienate the property during her lifetime. As stated already, the settle ment arrived at between the parties appears to their Lordships to have been both pru dent and reasonable in the circumstances of the case, and the plaintiff has no right to question it now.

Narindra Bahadur was in their Lord ships'' opinion, the nearest agnate of Wazir Chand, and if the property was subject to the provisions of the Hindu Law, as their Lordships find, whether he was joint or separate from Wazir Chand, he was entitled to the property on the death of his widow. The compromise, in fact, gave effect to this rule of the Hindu Law. The acknow ledgment of the widow that the property was subject to Act I of 1869 would not affect the rights of the parties on the basis of the law governing the succession.

The adoption of Nageshwar by Jagrani Kuar, although it took place in 1914, takes effect from the death of the father, to whom he is adopted, and therefore there was no intervening time during which it could be said that the property was not held by any one. It may be noted here that both the Courts in India have nega tived the plaintiff''s allegation of the alle gation contained in paras. 12 and 13 of his plaint.

In view of the peculiar course adopted by the Subordinate Judge in dealing with this case, and in order to prevent other Courts in India from falling into the same error, their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, al though they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular case. Nor is it open to them, whether on account of "judicial dignity" or otherwise, to question its decision on any particular issue of fact Any application for review of judgment on grounds permissible by law only lies to the Judicial Committee.

With these remarks their Lordships desire to express their entire concurrence with the judgment of the Judicial Com missioner''s Court. They will accordingly humbly advise His Majesty that the plain tiff''s appeal should be dismissed with costs.