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Judgment
Bucknill, J.—This was a First Appeal from a decision of the Subordinate Judge of Muzaffarpur, dated the 17th May, 1920,
The facts are very simple.
A lady named Rani Bigya Kumari Devi, the widow of one Raja Pirthipartap Sen, owned the lakhraj-brit right in the entire 16 annas of two mauzas called Langri and Bastha in Tappa Ramgir, Pargana Manjhowa, in the Champaran district, which are the properties in dispute; she died in 1901 or 1902.
She had a daughter, Prem Kumari Devi, who married one Babu Gambhir Singh; she died in 1908: her husband predeceased her. They had a daughter and a son, the former called Bishun Kumari Devi and the latter Raja Rajkumar Singh. Bishun Kumari Devi married one Sri Parkash Sen and had two sons Babu Ram Bahadur Sen (who is a minor and is the defendant first party in this suit, being represented by his guardian one Bachu Babu alias Bachu Singh who was so appointed in 1918 by the Court of the District Judge, Muzaffarpur) and Babu Shyam Bahadur Sen who died a minor before suit Bishun died about 1917: Sri Pargash Sen is the defendant 3rd party in this suit.
Raja Rajkumar Singh married one Rani Sri Kumari Devi: they had no issue; he died in 1908 and his widow is the defendant 2nd party in this suit. Neither the 2nd nor 3rd party defendants entered appearance.
The above observations show who the defendants are. The plaintiff''s position may be thus explained. As a result of certain occurrences, the legal effect of which is really the issue in this litigation, Rani Sri Kumari Devi (the defendant second party) who after her husband''s death, had, in 1905, already executed a thika patta in favour of a Mr. S.E. Coffin in respect of the mouzas in suit, found herself in 1908 with what purported to be a life interest in the property and omitting immaterial intermediate transactions, in 1912 she executed a sadhua pataua (usufructary mortgage) deed under which this Mr. Coffin (who was part proprietor of the Bhusrari Indigo Factory) continued in possession of the estate: she borrowed in 1916 Rs. 8,000 and in 1917 Rs. 3,500 from the plaintiff on mortgage bonds, and, finally, in 1918 executed in favour of the plaintiff a rehan-deed (usufructuary mortgage bond) for Rs. 22,250 : out of this sum about Rs. 5,700 were borrowed for the purpose of enabling the sum due to Mr. Coffin, who did not wish to remain any longer in possession of the property, to be paid off; about Rs. 14,300 were set aside to liquidate the amounts due to the plaintiff under the two mortgage bonds to which reference has just been made above; whilst the balance, amounting to some Rs. 2,300, was sent by the plaintiff to the defendant in order to meet, as was alleged to be the case with the two previous loans made to her, her "legal necessities." The plaintiff in 1918 thus purported to be entitled to possession of the property as a zarpeshgidar. In the meantime, however, Bachu Babu alias Bachu Singh had obtained in 1918 from the District Judge of Muzaffarpur, a grant of a certificate of guardianship of the defendant 1st party; a dispute arose between him and the plaintiff in connection with the possession of the properties which culminated in 1919 in proceedings, under S. 145 of the Criminal Procedure Code: this quarrel was decided in favour of Bachu Singh who is in possession. Hence this suit.
The plaintiff claimed the following reliefs:
That upon adjudication of the lakraj-brit right of the defendant 2nd party, and the zarpeshgi right of the plaintiff under the defendant second party, and want of title of the defendant first party in the properties in suit, a decree awarding possession of the same might be passed in favour of the plaintiff and that he might be put in possession thereof by dispossessing the defendant first party.
Mesne profits.
Costs with interest.
Such other relief as the plaintiff might be deemed entitled to.
The Subordinate Judge decreed the suit in favour of the plaintiff. The defendants second and third party did not appear although duly served; the defendant first party was ordered to pay the plaintiff''s costs. Now it is necessary to see what the defence to the plaintiff''s claim was as put forward by the defendant first party in his written statement. He claimed, in effect, that under a Will dated the 8th February, 1908 his mother''s mother bequeathed to him and his now deceased brother, Shyam Bahadur Sen, all the properties of Mussammat Bigya Kumari Devi which had devolved upon his mother''s mother as her heir. He also maintained that the occurrences, as the result of which his uncle''s widow (the defendant second party) found herself in possession of the property, had no legal binding effect upon himself (the defendant first party). Incidentally he denied that she was under any legal necessity to borrow any amount whatsoever. He further traversed the allegation that the plaintiff was really ever in possession of the properties as a zarpeshgidar or otherwise.
It is now necessary to turn to examine those occurrences by which the defendant second party found herself in possession of the property and was able to execute these deeds purporting to deal with the property by way of usufructuary mortgage. It may, at the outset, be desirable to state that there is now no dispute as to what, in the absence of any of these occurrences, would have been the normal devolution of the property. It is admitted that Rani Bigya Kumari Devi had a complete estate in the property; it is agreed that, on her death, a life interest only in it would descend to her daughter, Prem Kumari Devi; it is also admitted that as Prem Kumari''s son died prior to her death the property would devolve upon her daughter Bishun Kumari Devi who, again, would have only a life interest therein and that, finally, it would descend to the defendant first party.
The first of the occurrences which took place, however, was that on the 18th of October, 1894, Rani Bigya Kumari Devi executed a mukhtarnama in favour of Babu Gambhir Singh, the husband of her daughter Prem Kumari Devi. This document which is Ex 16 is of considerable importance in this case but it is unnecessary to set it out in full detail. It recites that the executant had many business transactions and much litigation in connection with her estate and, after these recitals, continues:
My grandson (daughter''s son) Raja Rajkumar Singh is my heir, but he is now a minor and is unable to manage the village and Court affairs personally, I, the executant, am a Pardanashin lady and it is impossible for me to manage the village and Court affairs unless I appoint a general agent. Therefore, of my own accord and free will 1 have appointed Babu Gambhir Sindh... as my general agent... This mukhtarnama (general power of attorney) shall remain in force until my grandson Raja Rajkumar Singh attains his majority. On attaining his majority he shall either look after his affairs personally or appoint a mukhtar.
The executant affixed her mark in the presence of one Badri Lal. Two other persons appear to have witnessed the document which was written out by a scribe; the document, was registered in due course. Now one of the questions which arises in this case is as to whether this document created any title to the property in favour of Raja Rajkumar Singh. It is admitted that at that date the executant could have disposed of all her property by gift or by will; it is also admitted that, if she made no gift nor Will, the property (which was her own ajauouk stridhan) would have descended to her daughter Prem Kumari Devi, and not to her daughter''s son Raja Rajkumar Singh. It is also admitted that the document shows that the executant was under the impression that Raja Rajkumar Singh was her heir. The Subordinate Judge has found that this document did not create any title in Raja Rajkumar Singh. Gambhir Singh apparently, accordingly, looked after the property. Rani Bigya Kumari Devi died in 1901 or 1902. In 1908 on the 8th of February, Prem Kumari Devi made a Will (Ex. A); in this Will, after reciting that her mother owned various properties, she referred to the fact that her mother had executed a general power of attorney in favour of her (the testatrix) husband Gambhir Singh. She also recited that, as her mother had no son, all her mother''s acquired properties were given to her (the testatrix) as stridhan and that she and her husband had been, since the death of her mother, looking after the estate, she being the absolute proprietress there of. The testatrix further recited that her own son Rajkumar Singh had died during his minority and, then, stated that, out of love and affection for her two grandsons (who she states will be, after her own death, her heirs) and fearing that there might be disputes over the estate after her death, she bequeathed all her poperies to them. She further stated that, if she (the testatrix) should die whilst they were still minors, their father, Sri Parkash Singh, as general agent, should look after the property on their behalf. It is, again, here, now, common ground that the testatrix was under a misapprehension in thinking that she had more than a life interest in the property assuming that it came to her on her mother''s death. It is also common ground that the defendant first party has always been under the impression that he obtained title under this Will. Not long after the execution of this Will Prem Kumari Devi died and, almost immediately, disputes arose which seem to have been referred in the first instance to the manager of the Court of Wards, Bettiah Raj who suggested that the disputing parties should refer the matter to arbitration. Raj-kumar''s widow on the one side and Sri Parkash Singh on the other agreed to the appointment of three arbitrators named Munshi Dost Muhammad Khan, Harnandan Dube and Munshi Dasrath Lall. These three gentlemen very wisely thought that it was necessary that before they undertook any investigation there should be drawn up a formal agreement of submission to arbitration; and this was accordingly done on the 16th of April, 1908, by an. ekrarnama which is Ex. 2. This again is a very important document. The opening words road as follows:
We are Bishun Kumari Devi, daughter of Babu Gambhir Singh, deceased and wife of Babu Sri Parkash, alive, and mother, guardian and next friend of Ram Bahadur Sen and Shyam Bahadur Sen, minors; Sri Parkash Sen, son of Babu Atal Bahadur Sen, deceased; and Musammat Rani Sri Kumari Devi, widow of late Raja Rajkumar Sen and daughter-in-law of Babu Gambhir Singh, deceased....
There is a dispute going on among us, the executants, about the moveable and immoveable properties acquired by our maternal grand mother, Musammat Bigya Kumari Devi, and this is likely to ruin our properties. We have, therefore, in concurrence with one another filed a petition before the Manager of the Bettiah Raj for settlement of our dispute and have, according to our choice, appointed three persons, i.e., Harnandan Dube, son of Gopal Dat Dube, deceased, by caste Brahman, by occupation zamindar and service holder, resident of Mauza ''Bettiah tappa Khadda: Munshi Dasrath Lall, son of Munshi Subh Narayan Lall, deceased, by caste kayasth, by occupation a zamindar and (also) a cashier, resident of Mauza Hasanpur Mathiya, pargana Dangsi, district Saran. and at present residing at Bettiah, mahalla Ganjdoem; and Munshi Dost Muhammad Khan, son of Munshi Chiragh Ali Khan, deceased by caste a pathan, by profession a mukhtar, resident of qasba Bettiah, Kalibagh, as arbitrators Hence, in order to have the dispute settled by the arbitrators and to do away with future dispute, if any, it is necessary for us to excuse an ekrarnama and have it registered. Therefore of our own accord and free will, in a sound state of mind and body, we make a trustworthy declaration and reduce to writing that the said arbitrators shall (settle our disputes) as regards the properties owned in proprietary interest muafi, lakheraj-brit and zirait lands, etc., lying in Ramnagar Raj, and thikadari and kashtkari rights and cattle, etc., in Bettiah Raj, i.e., all the movable and immoveable properties and house hold goods in whatever manner they like, they shall, on adjudication of right be at liberty to award any share to anybody, or act otherwise or decide the question in any other way they think proper. None of us, the executants, shall have any objection to the same. If any of the parties raise any objection to this, it shall, on the face of this ekrarnama, be deemed illegal and unjust and shall not be entertainable in Court. We, the executants shall stick to and abide by the arbitration award. Therefore we have executed this ekrarnama so that it may be of use when required.
A scribe named Debi Prasad wrote out this ekrarnama and at the foot of it he writes:
I have explained (the contents of) this deed to the executants.
The document was duly signed by all the executants and eventually was registered on the 22nd April. 1908, at the Bettiah Sub Registry office by Rani Bishun Kumari Devi. On the 17th July, 1908, the arbitrators gave their award: in the ekrarnama the executants did not particularise as to the exact nature of the dispute which they alleged was taking place between them about the property or upon what the claim of the one side or of the other was based. However, their respective contentions are quite clearly indicated in the award which is Ex. 1.
The arbitration award is stated at the outset to be made as between Bishum Kumari Devi, Sri Parkash Singh and their sons Ram Bahadur and Shyam Bahadur of the one party and Sri Kumari Devi of the other. The arbitrators gave a short history of the matter. They say:
Rani Bigya Mumari Devi acquired the three villages of Langri, Bastha and Jabdi from the Ramnagar Raj. Rani Bigya Kumari Devi had a daughter, namely, Prem Kumari Devi who was married to Gambhir Singh. Prem Kumari had a son, namely, Rajkumar Sen and a daughter Bishun Kumari. Sri Kumari Devi (the 2nd party) is the widow of Rajkumar Sen aforesaid. Bigya Kumari died in the year 1308 Fasli leaving Prem Kumari, her daughter, Raikumar Sen, daughter''s son and Bishun Kumari, daughter''s daughter. Rajkumar Sen also died shortly after the death of Bigya Kumari in the same year. Prem Kumari and Sri Kumari lived jointly and peacefully for years together. In the month of Phagun, 1315 Fasli, Prem Kumari died and only 8 days before her death she executed a will dated 8th February, 1908, in favour of Ram Bahadur and Shyam Bahadur, her daughter''s sons, in respect of all the properties which were acquired by Bigya Kumari. It is on account of this will that a dispute arose between the two parties, each trying to take sole possession of the properties.
The 1st party claim the properties by virtue of the Will and their contention is that after the death of Bigya Kumari, her daughter Prem Kumari, inherited the properties, and that, as such, she was justified in disposing of then as she liked.
The 2nd party claims that after death of Bigya Kumari Rajkumar Sen and after his death his widow Sri Kumari, the 2nd party, inherited all the properties.
To decide the question whether Prem Kumari or Rajkumar Sen succeeded and inherited the properties of Bigya Kumari after her death, we have one registered document, dated 19th October, 1894, which is a general power of attorney executed by Bigya Kumari in favour of Gambhir Singh in which Bigya Kumari has recognised Rajkumar Sen as her heir and successor of all her properties. Thus, there is no doubt, that Rajkumar Sen was the full male owner of the properties of Bigya Kumari after her death and after the death of Rajkumar Sen his widow Sri Kumari, succeeded to the properties of her husband according to the Hindu Law. She is, therefore, entitled to enjoy the properties so long as she remains alive.
Ram Bahadur and Shyam Bahadur will, however, inherit the properties after the death of Sri Kumari.
We think that the 1st party are entitled to maintenance during the lifetime of the 2nd party. But now, as they are not pulling on well with the 2nd party so in order to avoid further quarrel we decide that the 2nd party should pay Rs. 140 per annum in cash, and this sum of Rs. 140 the 1st party may take from Mr. S.E. Coffin out of Rs. 280 which is annually payable to Sri Kumari and others from Mr. S.E. Coffin out of the rent of the villages Langri and Bastha. We also decide that out of the cultivated zerait lands of village Langri the 1st party will get (six) bighas and one mangoes tope measuring about 1 bigha, 5 kathas, situated in village Mahaddipur for their maintenance. All other properties will remain in exclusive possession of the 2nd party, and the 1st party shall not in any way, interfere with the possession of the 2nd party. But neither the 1st, nor the 2nd party will have any right to waste the properties. Both parties will remain in the ancestral house at Mohaddipur as they were living before.
Then there remains the villages of Mohaddipur and Gurchurwa which have been in lease of the family from the Bettiah Raj for many years by virtue of several pattas executed from time to time.
The last lease was granted in the name of Sri Kumari Devi a few years ago, i.e., during the lifetime of Prem Kumari who did not make any objection to it. The 1st party also claim the thikadari right of this village by virtue of the aforesaid Will executed by Prem Kumari But as stated above, Rajkumar Sen was the last male full owner, and after his death his widow Sri Kumari Devi, the 2nd party, inherited the property of her husband under the law, and in view of the fact that the Bettiah Raj granted the last lease to the right person, Sri Kumari Devi, there cannot be any doubt that Sri Kumari Devi is entitled to enjoy the thikadari right of villages. Mohaddipur and Gurchurwa exclusively, and the patta should be executed in her name.
The 1st party, will, however, be entitled to get labourers and reason-able farmaish according to old customs from the village Mohaddipur when required, and the 2nd party will give necessary help to the set party in case of necessity.
We further decide that if, at any time, it may be proved by satisfactory and reliable evidence that the 2nd party has renounced the Hindu religion she will forfeit her right of ownership of the properties which will then go to the 1st party and the 2nd party will, in that case, be entitled to get maintenance from the 1st party.
It will be seen from this award that Bishun Kumari''s party claimed the property for Ram Bahadur and Shyam Bahadur, through the Will, made by Prem Kumari; whilst Sri Kumari Devi claimed the property under the mukhtarnama of the 19th of October, 1894. The arbitrators evidently thought that the mukhtarnama effectively constituted Rajkumar Singh the heir and successor to all the properties of Rani Bigya Kumari on her death. It will be seen by the award that they considered that Sri Kumari Devi succeeded to her husband''s property on his death, according to Hindu law, and was entitled to enjoy the properties as long as she lived; but that after her death Ram Bahadur and Shyam Bahadur would inherit the estate; but that in the meantime Sri Kumari Devi should pay a considerable sum by way of maintenance to the other party.
It was in this way that Sri Kumari Devi came into possession of the property and it was in this manner that she found herself in a position in which she was able to carry out the transactions the validity of which the first defendant, so far as they concern him, impugns in this litigation.
The most prominent question in this appeal is as to whether the result of these arbitration proceedings is, as an arbitration award, binding upon the defendant first party or whether, if not so effective, as an arbitration award, such result can be regarded as a family compromise or agreement and as such binding upon him. The Subordinate Judge finds that the submission to and award in arbitration are binding upon the defendants; he also regards the proceedings as a family compromise which was similarly effective in binding the first defendant. There are, however, other questions also involved with which it will be necessary to deal and I propose, therefore, to consider them in the order in which they have been respectively placed before us. It is not denied now that Prem Kumari had no power to dispose of the property by Will in the manner in which she purported so to do It must be a matter of some surmise as to why, although cognisant of the mukhtarnama in favour of her husband, she should not, when she made her Will, have thought (if indeed there had ever been any such thought in the minds of any of the family) that the mukhtarnama was intended to confer any title upon Rajkumar. It may be that Rajkumar''s death affected her view; but I have no doubt that, though Rajkumar may have been thought to be the heir, there never was the slightest idea in the minds of any of the parties concerned that the mukhtarnama itself was intended specifically to confer any title to the estate upon him or that it was more than, what it ostensibly purported to be, a power-of-attorney. It has, however, been raised before us that the mukhtarnama did in law, confer title on Rajkumar. I do not think that it did. It has been suggested to us that it is a Will or a declaration of trust either of which conferred upon Rajkumar a title to the property. The phrase which is used by the executant "My grandson (daughter''s son). Raja Rajkumar Singh is my heir" is, in my opinion, merely a statement of belief and was not intended to convey title. The whole object of this power-of-attorney was simply to arrange that, as Rajkumar Singh, whom the executant believed to be her heir, was a minor and that as the executant herself was unable to manage her affairs personally, Gambhir Singh, a grown up man and the minor''s father, was appointed to look after the estate until the boy attained his majority.
The expression "on attaining his majority he should either look after his affairs personally or appoint a mukhtar" does not, and was not intended, in my view, definitely to confer any right but was merely a statement of what would take place in normal course on the assumption that in law Rajkumar was the executant''s heir. The mere fact that the execution of this power-of-attorney appears to have been witnessed by three persons does not seem to me to be material in considering whether the document is of testamentary character. I do not think that it is a Will or a disposition of property in any sense nor do I consider that it is a document which can be regarded, in any way, as a declaration of trust conveying any definite rights. I cannot think that, in a document of this kind, it can be possibly, with any cogency, suggested that it intended to convey, or did convey, any title.
The validity of the arbitration proceedings was attacked upon several grounds. The first and least important of these grounds was based upon a suggestion that the ladies did not understand their rights which were not properly explained to them. An attempt was made to indicate that, from the evidence, it did not appear that the ladies were clearly informed of what was taking place. The cases of Satish Chandra v. Kalidasi Dasi [1921] 34 C.L.J. 529 and of AIR 1922 14 (Privy Council) were drawn to our attention in this connection in order to show that it is of the highest importance that a Court, when called upon to consider the execution of deeds by a pardanashin lady, must be satisfied that she understood what she was doing. An endeavour was made to show that in this suit there was very little evidence to indicate that the ladies had been made fully acquainted with what was being transacted. In my view this attempt has failed. So far as I can see, from such evidence as there is, there is no reason for thinking that, although they may have been mistaken as to their real legal rights, the submission to arbitration, owing to the dispute which had arisen, was not fully understood by these ladies.
It was next contended that the award was not really the award of the arbitrators as it was couched in such excellent, language as could not have been produced by the three gentlemen who purported to have dealt with the matter. It was suggested that it was really the production of the officers of the Bettiah Raj Court of Wards. I can only say, with regard to this idea, that I am not in a position to be able to state whether or not in the actual wording of the award the parties were assisted by the officers of the Bettiah Raj but I do not think it would matter much even if that had been the case. All that one can observe is that it is a clear and well phrased document and, although it may have proceeded on mistaken premises, it certainly effected a not unreasonable arrangement. The arbitration proceedings were further attacked on the ground that from the submission to arbitration it was impossible to gather what was the nature of the dispute. Here again I am not much impressed by this argument. There was undoubtedly a dispute of a genuine character and although that fact is merely stated in general terms in the submission it is quite clear from the award that its nature was very fully explained to the arbitrators.
It was further urged that the award was bad because on its face it was erroneous in matters of law (vide Halsbury''s Laws of England, Vol. I, p. 479). The errors in law which are suggested are that the arbitrators thought that Rajkumar was Rani Bigya''s heir and that after his death the property would pass to his widow instead of, as is admitted, originally devolving upon Prem Kumari and on her death upon Bishun Kumari and through her eventually to her sons as reversioners. It was also maintained that the award could not be supported because neither Bishun Kumari''s title nor that of her minor sons was ever considered by the arbitrators. It was further contended that, in any case, the minor''s reversionary interest could not be dealt with in any way and that the defendant first party could not be bound in any way by this award by which it was adversely affected.
I think that there is considerable force in some of these arguments. It is, of course, agreed that where a life tenant and all the reversioners are properly represented sui juris the free hold of a property can be affected by their agreement: but it is suggested here that in the arbitration proceedings Bishun Kumari, who was properly speaking in law, the holder of a life interest, was not aware of, and was not representing, her own title but was simply acting on behalf of her two minor sons who were the reversioners. On the other hand it is contended that even if this was the case her interest was in no sense adverse to that of her sons and that she properly represented them; and that, if she was not aware or if she chose to sink her own life interest and support only the interest of her sons, such action would not adversely affect the validity of the arbitration proceedings. Reference was made to several cases in connection with this proposition. In Lansdown v. Lansdown [1730] Mos. 364- 25 E.R. 441, the facts were as follows:
There were four brothers; the second died and the eldest entered into possession of the deceased''s lands. The youngest of the four brothers, however, claimed a title: whereupon they applied to a schoolmaster who decided in favour of the youngest brother because, in his view, lands could not ascend. When the schoolmaster gave his decision, then the eldest brother agreed to divide the estate with the youngest and declared that, although he still thought he had a right of inheritance, he would rather agree to such a division than go to law. The schoolmaster then drew up deeds of lease and re-lease of the moiety which were duly executed by the eldest brother; the youngest brother then died and the moiety descended to his minor son and heir. The eldest brother then brought a suit claiming the property and the Lord Chancellor held that he was entitled thereto on the ground that the deeds of lease and re-lease had been obtained by mistake and misrepresentation. In the case of Cooper v. Phibbs [1867] 2 H.L. 149 it was held that where two parties, under a mistake of fact, enter into an agreement, either of them has a title to come to equity to be relieved from it; but that relief will only be given on the principles of good conscience. The basis of the decision in that case was that, where parties had entered info an agreement which had been made in mutual mistake of their rights, either party was at liberty, even though there was no fraud, to have agreement set aside. According to Halsbury''s Laws of England, Vol. I, p 442 it would seem that in England a submission to arbitration made by an infant could not be enforced against him during his infancy and would be avoidable by him on attaining his majority; but that in England such submissions by infants out of Court are very rare. In Roberts v. Roberts [1905] 1 Ch. D. 704 it was laid down by the Court of Appeal that a compromise between members of a family of their supposed rights, under a Will or other document, made after a joint consultation with the family solicitor acting as an agent for all is, in general, binding upon all the parties even though it may not be quite in accordance with their exact legal rights; provided that the solicitor had, first, fully explained to the parties what those rights are. But if any one of parties has entered into the compromise in consequence of what afterwards proves to have been an erroneous view taken by the solicitor of the facts or of the law merely because the Solicitor may have considered a compromise would be for the advantage of all parties, irrespective of their legal rights, that party may have the compromise set aside. Vaughan Williams, L.J., in the course of his remarks stated: "Generally speaking we should be disposed to support a claim of compromise entered into after the parties have consulted the family solicitor even though the agreement may not be quite in accordance with the rights of the parties; because we think that generally the very object of the compromise is to avoid the necessity of having the exact relative legal rights determined by litigation; but I cannot agree with Kekewich, J., if he means by his judgment that the family solicitor is entitled to keep those consulting him in the dark as to their rights because he thinks that it is for the advantage of all the parties to compromise and that if they knew their exact rights there would be no chance of compromise." In the case of Vithaldas Ganpat v. Dattaram Ramchandra [1902] 26 Bom. 298 - 3 Bom.L. R. 887 the circumstances were that the step-mother of a minor, against whose estate the defendants had claims, referred the matter to arbitration, purporting to act on the minor''s behalf. No suit had then been filed by or against the minor. An award was made in 1899 directing the minor to pay to the defendants a sum of Rs. 950 and a decree was passed in terms of the award. In the following year the minor, by his next friend, brought a suit to set aside the decree on the grounds (a) that the minor had not been properly represented, and (b) that leave of the Court, under S. 462 of the CPC (XIV of 1882), had not been obtained. The lower Courts allowed the plaintiff''s claim and set aside the decree; but it was held in the High Court of Bombay that the section was not applicable, as, when the agreement was entered into, there was no suit or a guardian for a suit. The case was remanded to the lower Courts for hearing on the merits: the minor''s next friend being, presumably, it liberty to show, if he could do so, that the minor had not been, at the agreement properly represented by his step mother. In the case of Balaji Narayan Gokhale v. Nana Babaji Ghatg" [1903] 27 Bom. 287 - 5 Bom.L.R. 95 it was held that a manager of a joint Hindu family, even when he is not the father, has the power to bind the family by a reference, of a dispute with any outsider regarding any family property, to arbitration provided such reference be for the benefit of the family; and that minors in the family are bound by the reference and consequently by the award made upon it. In the case of Bibi Solomon v. Ablul Aziz [1881] Cal. 587 - 8 C.L.R. 414 it was held by the High Court that, where a compromise had been entered into affecting adversely the rights of the plaintiff, a minor, in the suit in certain property to which she was entitled by inheritance, such compromise having been sanctioned by the Court under a misapprehension of material facts and such misapprehension having been brought about by culpable ignorance and neglect of duty on the part of those who had entered into the compromise, it could be set aside. In that case the minor had been represented by her mother in a compromise with certain executors who represented the estate of the person from whom the minor derived her inheritance. There had been some uncertainty as to the value of the deceased''s property and the compromise resulted in the minor receiving very much less than what she would have received had the executors not been as the Court thought, culpably ignorant and neglectful in ascertaining the real value of the deceased''s estate. But the decision was really based upon the view taken by the Court that the action of the executors practically amounted to a form of fraud.
Perhaps the most important case which was quoted to us in this connection was that of 22 CWN 409 (Privy Council) in which it was held by the Privy Council that a Hindu reversioner has no right or interest in present in property which a female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is a mere spas successions. His guardian, if he happens to be a minor, cannot bargain with it on his behalf or bind him by any contractual engagement in respect thereto. This decision of their Lordships was given by Mr. Ameer Ali who, in the course of his decision observed as follows: "This is a suit by a Hindu reversioner to recover possession of certain properties that originally belonged to his maternal grand-father, Jhamman Singh. He alleges that the defendants, respondents before this Board, wrongfully possessed themselves of these properties under colour of certain arbitration proceedings whilst the estate was held by his mother, Kar Koer, as a female owner under the Hindu Law. Kar Koer died in 1905 and this action was brought in 1908. The suit is, therefore, clearly within time. The solo question for determination, in this appeal, is whether the arbitration proceedings and the decree on the award which gave to the predecessors of the respondents possession of these properties are binding on the appellant.
On Jhamman''s death, Radha Koer, his widow, applied for the registration of her name in place of her deceased husband in the Collector''s records. Her application was opposed by some of Jhamman''s agnatic male relations whom the respondents now represent. They claimed the property both under the general Hindu Law as also under some undefined family custom. Their objections were overruled by the Revenue Courts, and Radha Koer''s name was duly entered in the Collector''s register. Radha died shortly after in 1864 and was succeeded in the possession of the estate by her daughter, Kar Koer, the mother of the appellant. The agnates raised a fresh contest as to her right to hold the property. In the disputes that followed and which were eventually referred to the arbitration of a number of caste-men, she seems to have been represented by her husband, Rajender Singh. There is nothing, however, on the record to show if he had any authority to act for her as her agent. Before the arbitra tors had taken any action in the matter the compromise was arrived at, in which also Rajendra purported to act both for her and her infant son, the appellant. Under this compromise Kar Koer abandoned in favour of the agnates, all right to the immoveable property of her father, receiving on her part, besides some moveable property two small fractional shares in certain lands which stood in her and in her mother''s names. The effect of the arrangement was to extinguish completely the reversionary interest of her son, the appellant, in his grand-father''s estates. The compromise was placed before the arbitrators and they were invited to make an award in accordance therewith, which they did. It is to be noted that there is nothing on the record to show that the proceedings, before the arbitrators, ever came to the knowledge of Kar Koer or that she knew of the compromise and its effect. In fact, it appears that Kar Koer did not acquiesce in the award, and the opposite party had to apply to the Civil Court under the provisions of S. 327 of Act X of 1859 (the law that regulated at the time the procedure of the Civil Courts in India) for a decree on the award. The Court of first instance held that all the proceedings in connection with the compromise and the award had been without Kar Koer''s knowledge. It accordingly dismissed the application of the agnates under S. 327. They appealed to the District Judge who apparently considered that as Rajender, her husband, was a party to the compromise, her denial could not be believed. He accordingly made a decree to have the award filed and enforced under S. 327. From this decision Kar Koer preferred a special appeal to the High Court of Calcutta which was dismissed. She then applied for a review of judgment in which she was equally, unsuccessful. The result of these decisions was to put her out of possession of the property covered by the compromise, and which forms the subject-matter of the present action....
Mr. Ameer Ali then proceeds to point out that the guardian of a Hindu reversioner cannot bargain with that reversionary interest or bind the minor by any contractual engagement in respect thereof. He further, points out that, even if the minor had an existing right, the father could not enter into any arrangement which would bind him and which was not for his benefit. In this Court, in the quite recent case of Mt. Bhagwati Kuer v. Jagdam Sahay [1921] 6 Pat. L.J. 604, it was held by Das and Adami, JJ., that, when a dispute with regard to the rights of the members of a family has been settled by a fair compromise, such compromise will be upheld by the Court although perhaps resting upon grounds which would not have been considered satisfactory if the transaction had been between strangers; but that it must be established that the right compromised could at least have formed the subject matter of a claim, though a doubtful claim; that a reversionary heir who has only a spes succession''s cannot enter into a compromise with regard to such interest as he may have in the estate of the persons whose reversionary heir he claims to be; that a compromise of a doubtful claim by the holder of a limited interest stands on the same footing and binds the reversionary heir if it is established that the compromise was a fair and honest one and that the limited holder entered into the transaction as representing the estate and for the protection of the estate and not as representing herself and for her own protection.
Now, if we endeavour to apply such principles as are enunciated in the decisions which I have mentioned to the circumstances in this case, one must first observe that the parties to the arbitration were obviously acting under quite a mistaken view of their real rights. Sri Kumari Devi was under the impression that Rajkumar Singh was endowed with title to the property by virtue of the mukhtarnama of 1894. The arbitrators seem also to have adopted that view. I have already given my reasons for thinking that Rajkumar Singh acquired no title under this mukhtarnama; but, even supposing there was something to be said for that idea as a result of which the arbitrators considered that for her lifetime Sri Kumari was entitled to enjoy the properties, the position of Bishun Kumari, as taken up by per in the arbitration proceedings, was based upon a still slender foundation. She had no idea that she was the life tenant of the properties or that her so as should claim otherwise than under, what is admitted to be, the invalid Will of Prem Kumari. It seems clear from the terms of the submission to arbitration and of the award that she did not put forward any claim based on her own title or any claim based on the reversionary title of her so as but only on the Will. I think, therefore, that the arbitration proceedings and the award therein cannot be supported on two broad grounds: firstly, because there was in the minds of both parties and of the arbitrators a complete misapprehension as to the true legal position: this misapprehension was the cause of the non inclusion for consideration in the arbitration proceedings of either Bishun''s own life interest or the reversionary interest of her sons. The second reason is that, although it might perhaps be said that Bishun Kumari acted as she would have if she had waived her own claim or at any rate purported to be acting solely on behalf of the reversionary heirs, yet in arbitration proceedings it would be difficult to justify her entering into a compromise adversely affecting her sons'' reversionary interests which, in fact, were, apparently, never even considered at all.
I must now pass to the next and very important question which arises as to whether the arrangements which took place through the medium of arbitration can be supported as some form of family compromise. There is no doubt that the principles under which the validity of an arbitration should be judged are more rigid than those which apply when a family agreement is under consideration. I think that there is ample authority indicating that in some instances in which although as an arbitration proceeding the result of an award cannot be supported, it is still capable of support on the ground that the award represents what is in effect the outcome of a family compromise. It is suggested here that, even assuming that much greater latitude may be extended to the support of a family arrangement than is the case in maintaining an award under an arbitration, nevertheless, where a reversionary interest is in fact affected by a family arrangement, such a compromise cannot be supported and here a fortiori because the reversionary interest was never in any way dealt with. Numerous cases have been quoted to us on this point. In that of Helan Dasi v. Durga Das Mundal [1906] 4 C.L.J. 323 it was held that a partition or a family arrangement, made in settlement of a doubtful, if not a disputed claim, by arbitrators appointed by the parties, effecting a division of a family property and drawing up a list thereof which was signed by the parties, carried out and acted upon by them for sometime, is a valid and a binding arrangement which the parties to it cannot deny, ignore or resile from Mookerjee, J., in that case remarked that a family arrangement might be upheld even though there were no rights actually in dispute at the time of making it; and that the Courts will not be disposed to scan with much nicety the quantum of consideration; that it is a mistake to suppose that the doctrine of family arrangement extends no further than arrangements for the settlement of doubtful or disputed rights; and that the principle is applicable not merely to cases in which arrangements are made between members of a family for the preservation of its peace but also to cases in which arrangements are made between them for the preservation of its property. In the case of Williams v. Williams [1867] 2 Ch. 294 - 2 Dr. and Sin. 378 the facts were as follows:
A died leaving a wife and two sons. A had made a Will by which he gave all his property to his two sons in equal shares. But this Will was incomplete and was not admitted to probate. The brothers, however, orally agreed that the invalidity of the Will should make no difference and for twenty years they dealt with the property as if it belonged to then equally. The widow never insisted on her claims. The younger brother died and his legal representative filed a bill for the equal division of the property. The Court upheld the family arrangement although there were in law no rights whatever in dispute. Turner L.J. In the course of his decision remarked "It was strongly urged for the appellant that this case does not fall within the range of the authorities quoted; that those cases extended no further than to arrangements for the settlement of doubtful or disputed rights and that in this case there was not, and could not be, any doubtful or disputed right : but this I think, is a very short-sighted view of the cases as to family arrangements They extend, as I apprehend, much further than is contended for on the part of the appellant, and apply, as I conceive, not merely to cases in which arrangements are made between members of the family for the preservation of its peace but to cases in which arrangements are made between them for the preservation of its property.
In the case of Satya Kumar Banerjee v. Satya Kripal Banerjee [1909] 10 C.L.J. 503 - 3 I.C. 247 the same principles were followed. See also Ramjee Ram v. Saligram [1911] 14 C.L.J. 188 - 11 I.C. 481. Perhaps the most important case bearing upon this point is that of Keramalulla Meah v. Keamatulla Meah [1919] 23 C.W.N. 118 - 49 I.C. 886. In that case it was held that in the absence of proof of mistake, inequality of position, undue influence, coercion, fraud or any similar ground, a family arrangement made in settlement of a disputed or doubtful claim is a valid and binding arrangement which the parties thereto cannot deny, ignore or resile from : that if the parties have settled a dispute such settlement will not be set aside on the ground that it gave to one of them more than that which he ought possibly to have recovered if he had taken the judgment of the Court upon the matters in difference between them; that the Courts will not be disposed to scan with much nicety the quantum of consideration; that there is nothing in this doctrine of family arrangements opposed to the general principle, that, when it is sought to bind a minor by an agreement entered into on his behalf, it must be shown that the agreement was for the benefit of the minor; that if improper advantage has been taken of the minor''s position, a family arrangement can be set aside on the ground of undue influence or inequality of position or one of the other grounds which would vitiate such an arrangement in the case of adults; but that when there is no defect of this nature the settlement of a doubtful claim is of as much advantage to a minor as to an adult, and that where a genuine dispute has been fairly settled, the dispute cannot be re-opened solely on the ground that one of the parties to the family arrangement was a minor. Halsbury''s Laws of England, Vol. 14, p. 542, in dealing with what family arrangements can and cannot be supported, points out that an agreement dividing up family property, though entered into under a misapprehension of the legal rights of the parties, provided such misapprehension is not induced by any party to the agreement, is entitled to support even where the fact that misapprehension existed has been established by subsequent legal decision. On the other hand at p. 544 he points out that an agreement as to division of property can be set aside where the heir gives up property to which he had undoubted rights without consideration or where he was ignorant or without professional assistance; even though there was no evidence of fraud or undue influence. See also Hardeo Sahai v. Gouri Shankar [1905] 28 All. 35 - (1905) A.W.N. 171 - 2 A.L.J. 493, Rajendra, Nath Mitra, v. Nibaran Chandra Roy [1921] 25 C.W.N. 859. 22 CWN 914 (Privy Council) Beni Prasad v. Lajja Ram [1916] 38 All. 452 - 14 A.L.J. 438 - 35 I.C. 63 and Ram Nirunjnn Singh v. Prayag Singh [1882] 8 Cal. 138 - 10 C.L.R. 66.
In-order to see what should be the principles properly to be applied in this case, it is, in the first place, important to try and see clearly what was the position prior, and which gave rise, to arbitration or compromise. Sri Kumari Devi certainly had a claim : it may not have been a good claim it may have been founded possibly upon two misapprehensions : (a) that Rajkumar was, the heir in law to Rani Bigya and that on her death he (if indeed he survived her) came into her property to the exclusion of his mother, Prem Kumari. But this was a mistake: Prem Kumari was Rani Bigya''s heir. Rajkumar died before Prem Kumari: in law he was not Rani Bigya''s heir at the time of the dispute; (b) that Rajkumar had been made her heir by Rani Bigya by the mukhtarnama which she executed on October 19th, 1894. This may also have been, and, in my opinion was, a second mistake: but it was one a out which there was certainly an element of doubt; it was one of the, if not the main, grounds of the dispute: the arbitrators thought the claim was well founded: the question has been actively agitated and closely argued in the present litigation.
Added to all this, Sri Kumari Devi''s claim seems to have been recognized after Bigya''s death by Prem Kumari. Rajkumar is said to have died shortly after Bigya, in the same year (1901-02), and after his death Prem Kumari and Sri Kumari lived together. Sri Kumari was, apparently, recognized by Prem Kumari as the rightful possessor of the property for, in 1905, Sri Kumari granted the thika patta in favour of Coffin who was part proprietor of the Bhusrari Indigo Factory without any objection on the part of Prem Kumari. It is only in 1908, eight days before her death, that Prem Kumari seems to have, by her will, shown that she thought that she, and not Sri Kumari, was the owner of the state and to have believed that she could bequeath it to her daughter Bishun''s two sons. Prem Kumari''s husband had predeceased her : and Parkash Sen, her daughter''s husband may possibly have influenced Prem Kumari to make a Will in favour of his sons though that is mere surmise.
At any rate the above observations clearly show that after Prem Kumari''s death and at the time of the arbitration, Sri Kumari had a claim which, though it may in law actually have been a doubtful claim, was nevertheless one of quite a formidable character. It was one indeed which in my view justified Bishun Kumari in entering into negotiations with her Next let us look at Bishun Kumari''s position prior to the arbitration. Neither she nor her husband seem to have contemplated that she, on Prem Kumari''s death, could be the person entitled to a life interest in the estate : such a claim never seems to have been put forward at all by her; nor to have suggested itself to anyone at the time of the arbitration. She represented not herself but her minor sons and her claim for them based itself on Prem Kumari''s Will. She certainly could not possibly be said to be in any way entering into a compromise as representing herself or for the protection of her own interest for she was not even aware that she had one.
But, if she had been aware of her own claim, could she not, acting for the protection of the estate and not on her behalf, have properly, in order to avoid litigation and to settle the strongly advocated claim of Sri Kumari, have entered into the compromise which she did? If she could it seems difficult to see why, without knowing of her own claim, but with the sane object, she could not act similarly. The only possible objection which occurs to my mind is that she was ignorant that she had in her hands a very strong weapon to use in the dispute. Now what was the result of the compromise, intrinsically not at all an iniquitous one.
Bishun''s own interest is lost sight of, she was afraid that if Sri Kumari''s claim is successful, her own sons, whom she thinks are entitled under the Will of Prem Kumari, would never get anything from the estate: there seemsa general, but dim or at any rate not very clear, impression even in the minds of the arbitrators that perhaps, apart from the Will. Bishun''s two sons ought to come into the property after Sri Kumari''s death. What Bishun does do in reality is to set the duration of her own life against that of her sister-in-law, if she (Bishun) dies after Sri Kumari, the reversionary interests of her sons are not in any way affected, but if, as actually happened, she (Bishun Kumari) predeceases Sri Kumari then the reversionary interests of her sons are affected inasmuch as they would not own the estate until Sri Kumari''s death. If there had been no compromise then on the death of Bishun Kumari, which occurred in about 1917, Ram Bahadur Sen would have immediately been entitled to come into possession of the property. As it is, if the compromise is upheld he will not do so till after Sri Kumari''s death. The immediate claim here is one of possession. The minor''s guardian is in fact in possession of the property and the plaintiff, by virtue of his zarpeshgi, is seeking to eject the minor''s guardian from possession. If the compromise is supported the plaintiff must succeed but in any case his possession, under his zarpeshgi, would only be good until the death of Sri Kumari Devi; and whether the plaintiff could recover what he has advanced, in connection therewith, from Ram Bahadur Sen after Sri Kumari''s death depends upon considerations with which we are not here concerned.
Das, J. in the case of Mt. Bhagwati Kuer v. Jagdam Sahay (Supra) expresses his view that the law, as it, at present (1921) stands, indicates that:
A reversionary heir can under no circumstances convey or agree to convey or relinquish any future right or expectancy nor can his guardian, if he happens to be a minor, bargain with his possibility of succession or bind him by any contractual engagement in respect thereto.
If that was the end of the position there seems no doubt that the arrangement in this case could not be supported, for Bishun in it undoubtedly though unknowingly did something which might and actually did affect adversely her minor son''s reversionary interest. But the second proposition is:
An alienation by a limited owner does not bind the reversioner but a limited owner can bind the reversionary heir by a compromise in which each party takes a share of the family property by virtue of the independent title which is to that extant and by way of compromise, admitted by the other parties, if it appears that the compromise was a fair and a bona fide compromise and that the limited owner entered into the compromise as representing the estate which was for the time being vested in her, and acted for the protection and preservation of that estate : "and with this must be read the third proposition :
Whenever a question is raised whether a transaction is an alienation or a compromise of a doubtful claim, the true test to apply is to see whether the alienee derives title from the holder of the limited interest. Whore the trans action is based on the assumption that there was an antecedent title of some kind in both the parties and the agreement acknowledges and defines what that title is, the transaction is not an alienation but a compromise of a doubtful claim.
Now admitting that the compromise was a fair and bona fide one, what would Bishun''s powers be in entering into it?
I assume in the first place that she was aware of her own life interest and of her son" reversionary interest. Could she, for the sake of peace, have given Sri Kumari her (Bishun''s) own life interest? I think the answer must be in the affirmative. Could she have given out and out to Sri Kumari and her side of the family a reasonable amount of the property? I think again the answer is probably in the affirmative : for though by so doing she diminished the amount of property which might come to the reversioner''s hands she had for the benefit of the estate power to alienate. Could she give to Sri Kumari a longer estate in the whole property than her (Bishun''s) own life interest? For example could she give to Sri Kumari and her side of the family a limited interest in the whole property for her (Bishun''s) own life and for twenty years after her (Bishun''s) death? I am of the opinion that the answer is in the negative: for if she did so she would be doing something purporting to bind the minor reversioners by a contingent retardation of the date (i.e, the date of Bishun''s death) upon which -their reversionary interest might vest in them. She cannot do away with her minor sons'' reversionary interest: she cannot bind them by entering into any contractual engagement in respect of it: she could not, in my view, deal with it by introducing into it a feature of time which would retard definitely the vesting of the reversionary interest in the reversioners, assuming of course that they outlived her.
I have, therefore, not without reluctance under the circumstances of this case come to the conclusion that it was not competent for Bishun to do what she did in this case : i.e. to agree to a compromise which in giving a life interest in the whole property to Sri Kumari for her (Sri Kumari''s) life, might have, and in fact has introduced a new condition into the reversionary interest of her minor sons, that new contingency being a postponement for an indefinite period (i. e. the period intervening between Bishun''s death and the unascertainable date in the future when Sri Kumari dies) of the vesting of the reversionary interest in the first defendant. The transaction cannot, therefore, in my opinion, be supported as a family settlement.
Summarizing then my conclusions they are:
I do not consider that the mukhtarnama, executed on October 19th, 1894, by Rani Bigya Kumari Devi in favour of Babu Gambhir Singh, the husband of her daughter. Rani Prem Kumari Devi, endowed the executant''s grandson, Raja Rajkumar Singh, with any title to her (the executant''s) estate. On this point I agree with the Subordinate Judge.
I do not see any ground for considering:
(a) that Ram Bahadur Sen and Shyam Bahadur Sen, the two minor sons of Musammat Bishun Kumari Devi, and of her husband, Babu Sri Parkash Son, were not sufficiently represented in the arbitration proceeding by their mother and father.
(b) that the two pardanshin ladies; Mussammats Bishun Kumari Devi and Sri Kumari Devi, who were parties to arbitration proceedings were not adequately acquainted with or insufficiently informed of what was taking place in connection therewith;
(c) that the arbitration award was not" the award of the arbitrators. On these points I agree with the Subordinate Judge so far as he had to deal with them;
I do not consider that the arbitration proceedings can be supported for the following reasons:
(a) The parties went to arbitration under a complete misapprehension of their respective real legal positions and rights.
(b) The award of the arbitrators was given under a similarly almost complete misapprehension of the respective real legal positions and rights of the parties.
(c) The award was bad in law in that:
(i) the arbitrators wrongly thought that the mukhtarnama of 19th, October 1894, executed by Rani Bigya Kumari Devi in favour of Babu Ghambir Singh endowed Raja Rajkumar Singh with title to the estate through which Sri Kumari Devi could claim.
(ii) The arbitrators wrongly thought that the Will made by Rani Prem Kumari Devi, on 8th February 1908, in favour of Ram Bahadur Sen and Shyam Bahadur Sen was valid.
(iii) The arbitrators did not take into consideration the life interest which Mussammat Bishun Kumari Devi held in the estate after the death of her mother, Rani Prem Kumari Devi.
(iv) The arbitrators did not (apparently) take into consideration the reversionary interest of Ram Bahadur Sen and Shyam Bahadur Sen.
I do not consider that the first defendant would, in any case, be bound by the award of the arbitrators because by that award his reversionary interest was subjected to the imposition of a condition under which the vesting in him of his reversionary interest might have been and in fact is retarded for an indefinite period after the date when in law it should vest in him. To such a course he, being a minor, could not be bound by any acquiescence therein on the part of those purporting to represent him in the arbitration proceedings. On this point I disagree with the Subordinate Judge.
I do not consider that the arrangements which resulted from the arbitration proceedings can be supported as a family settlement as binding the first defendant because as the effect of the compromise the reversionary interest of the first defendant was affected in the manner which I have detailed in the preceding paragraph. I may also here add, although it may not strictly be here material, that the complete ignorance of Mussammat Bishun Kumari Devi of the fact of her own claim to a life interest in the estate deprived her of utilizing, on behalf of the reversioners, a very potent weapon in the controversy. On this point I disagree with the Subordinate Judge.
The result will be that the appeal by the first defendant will be allowed: the judgment of the Subordinate Judge will be set aside so far as it relates to the appellant : the respondent must pay the costs of the appellant, both of the appeal and (sic)n the Court below.
Ross, J.
I agree.