Smt. Rampeyari Koer vs Ramdhani Singh and Another

Wort, J.—This is the plaintiff''s appeal and arises out of an action for a declaration that a certain property is the exclusive estate of one Dhanukdhari Prasad Singh, the plaintiff''s father, and that the plaintiff is entitled to this property on the death of her mother Mt. Nagesar Kuer, and for possession.

The facts have been stated in detail by the learned Judge in the Court below and I do not propose to re-state them. Two questions arise before us in appeal, one is a question of fact and the other is a question of law. The question of fact is whether, as the plaintiff alleged, she was a minor at the time she executed the ekrarnama, and, incidentally, whether she understood the nature of her act in executing the document. The other question is whether in the circumstances, assuming that the question which I have just indicated is decided against the plaintiff, the plaintiff is bound by that document. As to the age of the plaintiff the learned Judge in the Court below has referred in detail to the witnesses called on behalf of the plaintiff and has come to the conclusion that their evidence is not to be accepted. The most important witness and the witness upon whom greatest reliance was placed by the plaintiff was witness 3, who is a revenue agent and who purports to remember the date of the plaintiff''s birth. The learned Judge dismisses the evidence of this witness by stating that he did not impress him and making the further statement that he was of the opinion that he was a hired witness. Whether a statement of that kind is too harsh is not a matter for this Court, but it is sufficient to say that on the demeanour of the witness the learned Judge would not accept the evidence he gave. The other evidence was discredited for various reasons. The next witness is P.W. 4 who, the Judge says, was a stranger to the family. The witness following him was in the employment of the family for only two months and could not be relied upon. Then the learned Judge came to discuss the evidence of the plaintiff herself.

One of the facts which impressed the Judge against the evidence of the plaintiff herself was that the horoscope upon which the plaintiff purported to rely for the purposes of her own age was not produced. The plaintiff represented in this Court by Mr. Khurshed Husnain relied upon one of the defendants'' own witnesses Saheb Singh (witness 3 for the defendants). That witness stated in the course of cross-examination that the plaintiff was about ten or eleven years older than Earn Chander. Earn Chander was a party to the suit and filed his written statement on 22nd February 1934.

Mr. Husnain contends, referring to the written statement and the evidence I have just stated, that it will be seen that in 1922 (the date of the ekrarnama) the plaintiff could not have been major; in other words, we are to take the evidence of defendants'' witness 3 in cross-examination literally and come to the conclusion that the plaintiff was exactly ten or eleven years, that is to say, 10J years older than Earn Chander, Earn Chander still being a minor in February 1934. At the most that will give the plaintiff a margin of two or three months. Having regard to all the circumstances and particularly having regard to the decision of the learned Judge who saw the witnesses and heard their evidence, it is impossible to come to the conclusion that the plaintiff was a minor at the time the ekrarnama was entered into, that is to say in 1922. Furthermore there was another somewhat important point of criticism of the plaintiff''s evidence. The plaintiff set out in the plaint to establish the fact that she was 17 at the time the ekrarnama was executed. The evidence adduced on the part of the plaintiff would show her to be not more than 14 at the outside--probably 16 years of age.

These circumstances, it seems to me, add a further reason for discarding the evidence of the plaintiff in this regard. The question whether she understood the document hardly arises. Not only did she execute it but there is no question of it having been read over and explained to her, because the evidence shows that she read over the document herself and claimed at the time of the registration of the document before, the Registrar that she understood the purport of it.

The substantial question is the question of law which has been argued by Mr. Khurshed Husnain. The facts relating to that are these. On the death of Dhanukdhari the widow applied for the mutation of her name as regards one-half of the property which formed the ancestral property of the family and her name to be mutated as regards the absolute ownership of the separate properties of Dhanukdhari. It appears that the application was acceded to but the order in this respect was set aside on an application of the other members of the family, as it had been made ex parte. Shortly afterwards came the document which is the subject-matter of this litigation the ekrarnama dated 17th October 1922. The parties to that document were Ramdhani Singh who was the first executant, Nagesar Kuer the mother of the plaintiff who was the second executant and Bam Peyari Kuer the plaintiff who was the third executant. Under that ekrarnama the arrangement was that Ramdhani Singh should be entitled to eight annas share of all the properties, Nagesar Kuer was to enjoy for her lifetime an eight annas interest and on her death four annas was to go to the plaintiff and the balance of the eight annas of her life interest was to go to Ramdhani Singh.

It is contended by Mr. Khurshed Husnain that Earn Peyari Kuer the third executant (who is the plaintiff as I have said) had nothing more than a spes successionis and that she was party to no dispute at the time the ekrarnama was entered into in October 1922 and that therefore the ekrarnama was not binding on her. If that argument be accepted in its entirety, then no family arrangement could be entered into. If one member of the family having no part, in a family dispute as not being entitled to more than a spes successionis enters into or becomes a party to the arrangement, then such an arrangement would be held not to bind that member: if he were a party to the arrangement, then the arrangement would be held not to be binding as he had no more than a spes successionis.

For this proposition, reliance is placed upon the decision of their Lordships of the Judicial Committee of the Privy Council in Amrit Narayan Singh v. Gaya Singh A.I.R.1917. P.C. 95 where Mr. Ameer Ali who delivered the judgment of their Lordships, in dealing with the argument of one of the parties and the judgment of the High Court, observed as follows:

Their Lordships are unable to concur in the propositions on which the learned Judges of the High Court have based their judgment. With respect, in proceeding to consider whether Rajander Singh, the plaintiff''s father, had power to refer the matter on behalf of his minor son to arbitration, they seem to have misconceived the legal position of the infant under the Hindu law. Evidently they thought he had a right which could form the subject of bargain. This is an obvious mistake; a Hindu reversioner has no right or interest in prasenti in the property which the 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.

Now it is upon that passage that reliance was placed, and taken out of its context it might appear to support the argument which is addressed to us on this point by Mr. Husnain. But if the facts of that case are noticed, it will be seen why their Lordships of the Judicial Committee of the Privy Council held that the transaction in that case was not binding upon the parties. The transaction was supposed to be of one Kar Koer, the daughter of a person who was the last holder of the estate. Rajander Singh, her husband, purported to act on her behalf but their Lordships point out that there was no evidence whatever of his having any authority to do so. They also point out that Kar Koer had no knowledge whatever of the arbitration proceedings which were the basis of a decree which the parties claimed to be binding upon Kar Koer. In those circumstances it was impossible, if I may say so with respect, for the Privy Council to decide otherwise than that the decree to which I have referred was not binding upon Kar Koer. But in this case we have a very different set of circumstances.

Mr. Husnain also relies upon the decision in Kanhai Lal v. Brij Lal A.I.R.1918. P.C. 70. There an arrangement was entered into and the question was whether Kanhai Lal was bound by that arrangement. Their Lord-ships of the Privy Council held that by the arrangement Kanhai Lal obtained a quarter share in the property and that he had the added advantage of being treated as the adopted son of Parbati Kuer. It might be supposed on a casual reading of that decision that Kanhai Lal''s interest was an interest in prasenti, but from an analysis of the decision it will be seen that Kanhai Lal''s interest in the quarter share was only as reversioner of Parbati of whom he was, by the arrangement, declared to be the adopted son. In my judgment the decision which governs this case is the one reported in Bajrangi Singh v. Manokarnika Bakhsh Singh (1908) 30 All 1. The judgment in that case was delivered by Sir Andrew Scoble.

In the case before us it is the contention as I have said that by reason of the facts that the plaintiff had nothing more than a spes successionis and that she was no party to any dispute, the agreement evidenced by the ekrarnama which she executed was not binding upon her. That argument is tantamount to saying that it was not a family arrangement. If the matter be treated in that light, then the transaction of October 1922 must be considered an alienation of a part of the estate by the mother. If that view be taken of the matter, then the decision to which I have just made reference applies. The headnote of the report correctly states the decision of their Lordships, and it is this:

A Hindu widow from 1872 to 1875, without legal necessity and without the consent of the reversionary heirs, executed deeds of sale of successive portions of her husband''s estate to her son-in-law. Thereafter in 1877 and 1878 deeds of relinquishment for valuable consideration ratifying the said sale deeds and agreeing not to dispute their validity were executed by all the nearest reversionary heirs, being the only living reversioners in the line of the common ancestor of themselves and the deceased owner of the estate.

The decision on those facts was that the consent of these persons was sufficient and binding on their descendants, and that it was immaterial that it was given after the execution of the said sale deeds. If the matter is treated as an alienation by the widow, we have the consent of the plaintiff given to that and, in those Circumstances, it is a transaction which is binding upon her.

In this view of the matter the other questions which arose in the Court below do not arise in this case and in my judgment the decision of the learned Judge in the Court below was correct.

The appeal therefore fails and must be dismissed with costs.

Manohar Lall, J.

I agree. In my opinion several provisions of the deed of family arrangement, into which she deliberately entered on 17th October 1922 as a major with full understanding of its contents, clearly show that the appellant received immediate benefit from this arrangement. She was the next immediate reversioner and cannot now be (allowed to go back upon that arrangement.