Kunwar Gobind Krishna Narain and Another vs Lala Khunni Lal; Lala Kanhaiya Lal; Sarnam Singh and others

Ameer Ali, J. 1. These appeals, which have been consolidated by an order dated November 1, 1910, arise out of three actions in ejectment, brought by the plaintiffs in the Court of the Subordinate Judge of Bareilly, who dismissed the suits by one judgment on May 20, 1905. His decision, however, was reversed on appeal by the High Court of Allahabad, which decreed the plaintiffs'' claims, on April 23, 1907. The defendants have appealed to His Majesty in Council, and the point for determination is the same in each case. 2. The plaintiffs claim as next reversioners to their grandfather (mother''s father) Raja Daulat Singh to recover possession of certain properties held by the defendants, on the allegation that the deed of compromise under which the latter purport to derive title is not binding on them. The defendants, on the other hand, are transferees from one Raja Khairati Lal, a grandson by a daughter of Raja Ratan Singh, the father of Daulat Singh, and a party to the compromise in question. 3. The history of Ratan Singh''s family and the circumstances which led to the compromise have been twice before this Board and will be found summarized in the earlier of the two cases L.R. 1 Ind. Ap. 157 : L.R. 36 Ind. Ap. 138. It is unnecessary, therefore, to enter into them at any length. For the purposes of the present appeals it is sufficient to state that Raja Ratan Singh, who appears to have held a high position in the Court of the then King of Oudb, owned considerable property within British territories, part of which is in suit, and that he and his son Daulat were members of a joint Hindu family and thus entitled in joint tenancy each to a moiety of the properties. 4. It may be taken now as established beyond dispute that in 1845 Ratari Singh abandoned Hinduism and adopted the Mahomedan faith. But although his renunciation of the Hindu religion involved, under the Hindu law, the forfeiture of civil rights to the extent of depriving him of his share in the joint estate, Daulat advanced no claim based on such forfeiture, and father and son remained joint until the latter''s death in January, 1851. 5. Daulat left him surviving a widow named Sen Kunwar, and two daughters, Chhattar Kunwar and Mewa Kunwar. On the death of Ratan Singh some months later (September, 1851) the entire property which had stood all along in his name in the Collector''s register was recorded in the name of his widow, Rani Raj Kunwar. 6. Disputes then arose between the heirs of Danlat on the one side and Raj Kunwar on the other. Eventually, and in consequence of these disputes, the Court of Wards took over, in 1852, possession of the entire estate, making Raj Kunwar, who is stated to have been a person of weak intellect, an allowance of Rs. 500 a month. The rights of Daulat''s heirs do not appear to have been admitted to any part of the property, as no allowance was made to them, and, in fact, it is alleged, they were referred to the Civil Courts for the establishment of their rights. Matters remained in this condition for several years. Sen Kunwar died in 1857, and Raj Kunwar, Ratan''s widow, the following year. In 1860, under the advice of Mr. John Inglis, a well-known district officer, then Collector of Bareilly, the daughters of Daulat and the grandson of Ratan, Khairati Lal, entered into the compromise which the plaintiffs now seek to set aside so far as it affects them. 7. By this compromise Daulat Singh''s daughters, Chhattar Kunwar and Mewa Kunwar, obtained between them an 8? anna share, taking the entire estate as 16 annas; whilst Khairati Lal received a 7? anna share. Partition was effected in terms of the compromise, and the parties obtained possession of the respective shares allotted to them. Chhattar Kunwar died in 1866. There was litigation between Chhattar''s husband and Mewa Kunwar as to the right to Chhattar''s share, which was ultimately decided in Mewa Kunwar''s favour, who thus obtained possession of the entire 8? anna share received by the two sisters in 1860. Mewa Kunwar died in 1899, and the share held by her has devolved on the plaintiffs, her sons. 8. Their case is that on the abandonment of Hinduism by Ratan Singh he forfeited his half share in the joint property which vested in Daulat Singh, that they as his heirs are entitled to the entire 16 annas, and that they are not bound by the compromise of 1860, as Chhattar Kunwar and Mewa Kunwar, being mere life tenants, had no authority, in the absence of legal necessity, to alienate the 7? anna share in favour of Khairati Lal. 9. The defendants, who are transferees either from Khairati Lal or his heirs, contend inter alia that the compromise entered into by the two ladies was not an alienation; that it was, a family arrangement for the settlement of disputes under which they obtained more than they were legally entitled to ; that in view of the British legislation (to which the defendants refer) the forfeiture, on which the plaintiffs reply, could not be enforced, and that, therefore, there was no divestment of the right of Ratan in respect of his half share, and that even if any such right, as the plaintiffs allege, devolved on Daulat in consequence of Ratan''s conversion in 1845, it became "extinguished" on the lapse of twelve years from the date of such devolution. 10. The Subordinate Judge in a well-considered judgment upheld the defendants'' pleas and dismissed the suits. The learned judges of the High Court, on appeal by the plaintiffs, arrived at a different conclusion. They were of opinion that on the conversion of Ratan Singh, Daulat became "sole and absolute owner, of the whole estate," inasmuch as Regulation VII of 1832 "did not abrogate the Hindu law as to the consequences of apostasy," and Act XXI of 1850 was not enacted until some five, years after his adoption of the Mahomedan faith. With regard to the compromise of 1860, although they considered it to be "just and wise" and "perhaps the best arrangement that could be made they felt pressed by authority to hold in effect that it amounted to an alienation which the ladies, in the absence of legal necessity, were not competent to make, and that consequently it was not binding on the plaintiffs. In this view of the question they reversed, as already stated, the decision of the Subordinate Judge; and decreed the plaintiffs'' claims in all three suits. The learned judges did not deal with the question of limitation raised by the defendants. 11. Their Lordships regret they are unable to concur in the judgment of the High Court. 12. In 1845, when Ratan Singh abandoned Hinduism and adopted the Mahomedan faith, the rule laid down in Section 9, Regulation VII. of 1832, for decision in civil suits where the parties ranged against each other belonged to different persuasions, was in force in the Bengal Presidency. It declared in express terms that in such cases, "When one party shall be of the Hindoo and the other of the Mahommedan persuasion, or where one or, other of the parties to the suit shall notbe either of the Mahommedan or Hindoo persuasions, the laws of those religions shall not be permitted to operate to deprive such part or parties of any property to which, but for the operation of such laws, they would have been entitled." 13. Act XXI. of 1850 extended the principle of Section 9, Regulation VII of 1832, of the Bengal Code throughout the territories subject to the government of the East India Company. After reciting the provisions of Section 9, and stating that it would be beneficial to extend its principle to the rest of British India, it enacted that - "So much of any law or usage now in force within the territories subject to the government of the East India Company, as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as law in the Courts of the East India Company, and in the Courts established by Royal Charter within the said territories." 14. The intention in both enactments is perfectly clear; by declaring that the Hindu or Mahomedan law shall not be permitted to deprive any party not belonging to either of those persuasions of a right to, property, or that any law or usage which inflicts forfeiture of rights or property by reason of any person renouncing his or her religion, shall not be enforced, the Legislature virtually set aside the provisions of the Hindu law which penalizes renunciation of religion or exclusion from caste. 15. The effect of the legislation of 1832 and 1850 was that on Ratan Singh''s abandonment of Hinduism Daulat Singh did not acquire any enforceable right to his father''s share in the joint family property which he could either assert himself or. transmit to his heirs for enforcement in a British Court of justice. 16. In the view their Lordships take of this branch of the case it is not necessary to discuss the question of limitation raised by the defendants. But it may be observed that whatever right Daulat acquired under the Hindu law to the share of his father came into existence in 1845 on the conversion of the latter to the Mahomedan religion. No suit could be brought, even if the enactments referred to above had permitted it, to enforce the right after the lapse of twelve years "from the time the cause of action arose" (Section 12, Act XIV. of 1859). Nothing in art 142 of Act IX. of 1871 or of Article 141 of Act XV of 1877 could lead to the revival of a right that had already become barred. In this connection their Lordships would refer to the judgment of this Committee in the case of Hurrinath Chatterji v. Mohunt Mothoor Mohtn Goswami I.L.R. 20 Ind. Ap. 183, where it was pointed out that "the intention of the law of limitation is, not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right." 17. Such was the relative position of the parties in 1860, when the compromise was entered into. 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. Under these 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. The real nature of the compromise is well expressed in a judgment of the High Court of the North West Provinces in 1868 in the suit of Mewa Kunwar against her sister Chhattar Kunwar''s husband. The learned judges say as follows: "The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it 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 the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement 3 Agra H.C.R. at p. 84." 18. Their Lordships have no hesitation in adopting that view. The true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life tenant. In the present case Khairati Lal acquired no right from the daughters of Daulat, for "the compromise," to use their Lordships'' language in Rani Mewa Kuwar v. Rani Hulas Kuwar L.R. 1 Ind. Ap. at p. 166, "is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is." 19. In their Lordships'' judgment the decisions on the authority of which the learned judges of the High Court have held the compromise not to bind the plaintiffs are not applicable to the present case. 20. On the whole their Lordships are of opinion that the judgment and decrees of the High Court of Allahabad should be reversed and those of the Subordinate Judge restored, and they will humbly advise His Majesty accordingly. 21. The respondents will pay the costs of this appeal and of the appeal in the High Court.