PETITIONER:
RAM CHARAN DAS
Vs.
RESPONDENT:
GIRJANANDINI DEVI AND ORS.
DATE OF JUDGMENT:
20/04/1965
BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
SARKAR, A.K.
BACHAWAT, R.S.
CITATION:
1966 AIR 323 1965 SCR (3) 841
CITATOR INFO :
F 1971 SC1041 (8)
R 1972 SC1279 (10)
F 1976 SC 807 (14,17,40)
ACT:
U.P. Court of Wards Act, 1912 (Act 4 of 1912), s.
37(a)--Family' Settlement whether amounts to transfer or
creation of interest in property within the meaning of
section.
Compromise in suit--Document recording compromise
whether amounts to family settlement--Monies paid by one of
the parties under the document-Other parties whether
estopped from challenging its validity--Party receiving
benefit under document--Whether can challenge its validity.
HEADNOTE:
C's property passed under his Will, drawn in 1883, to K
and M who were brothers. M died and K entered into
possession of his share also. On K's death in 1922 his
mother entered into possession of the whole property. She
gave over the management of the property to the Court of
Wards under s. 10 of the U.P. Court of Wards Act, 1912. The
daughter of M however with the consent of K's mother got her
father's share released from the management of the Court of
Wards in her favour. In 1932 G, sister's son of K, filed a
suit in which he challenged the release of M's share in
favour of his daughter. Two other suits were filed in
respect of the property by descendants of C's brother who as
collaterals claimed to be next reversioners to the property.
The plaintiff in one of these suits was the present
appellant; in the other suit the plaintiff was his brother.
In these suits a declaration was sought that G and M's
daughter had no rights in the properties in question. G, M's
daughter. K's mother and the Court of Wards were made
parties to these suits. Both these suits were cornpromised.
The suit of the present appellant was compromised by ,a
document Ex. Y-13, to which, among others, the appellant, G,
and K s mother were parties. G had withdrawn his own suit
shortly before. Acting on the document Ex. Y-13 G paid
monies to the Court of Wards to clear his liabilities and
get released from its management the properties in question.
C, M's daughter, K's mother and the Court of promise.
However, subsequently, the appellant filed a suit in which
he challenged the validity of Ex. Y-13. Having failed in the
trial court as 'well as in the High Court he appealed to
this Court by special leave.
The questions that fell for determination were: (1) whether
Ex. Y-13 was binding on the parties as a family arrangement
or settlement, (2) whether certain reservation in the said
deed, leaving it open to the parties to challenge its
recitals in certain contingencies had the effect that the
deed was not intended to be final, and (3) whether the
family settlement fell within the mischief of s. 37(a.) of
the U.P. Court of Wards Act.
HELD: (i) The document Ex. Y-13 was in substance a
family 'arrangement and therefore binding on all the parties
to it. On the face of it, the document was a compromise of
conflicting claims. The
842
parties recognised each others' rights to property, which
they had earlier disputed. The suit filed by G was withdrawn
shortly before the document was executed and those filed by
the appellant and his brother were compromised on the day of
its execution. All these transactions were part of one main
transaction which was the settlement by members of the
family of all their property disputes once and for all.
Further, all those who could be said to be interested in the
property were made parties to the transaction. [845H-846A]
In these circumstances, the appellant who had taken benefit
under the transaction was not entitled to turn round and
challenge its validity'. He was also estopped from doing so
because G, acting on the document had paid monies to the
Court of Wards to get his property released. [850G]
Ramgouda Annagouda v. Bhausaheb, L.R. 54 I.A. 396, relied
(ii) Courts give effect to a family settlement upon the
broad and general round that its object is to settle
existing or future disputes general regarding property
amongst members of a family. The word family in this
context is not to be given a narrow meaning. In Ramgouda
Annagouda's case, of the three parties, to the settlement of
a dispute concerning the property of a deceased person one
was his widow, another her brother, and the third her
son-in-law. The two latter were not heirs of the deceased,
yet bearing in mind their relationship to the widow the
settlement of the dispute was regarded as the settlement of
a family dispute. The consideration for such a settlement is
the expectation that it will result in amity and goodwill
amongst persons bearing relationship to one another. That
consideration having passed by each of the disputants, the
settlement consisting of recognition of the right asserted
by each other cannot be permitted to be impeached
thereafter. [850F-H, 851A-B]
(iii) No doubt the parties to Ex. Y-13 recognised each
others relationship to K only for the purposes of the deed,
and also reserved to themselves the right to challenge the
recitals to the deed, in certain contingencies. Thereby it
is not established that the document was not intended to be
final. Read as a whole the document left no doubt that it
was intended to be a final settlement. If it were intended
otherwise there would have been express mention to that
effect in the deed. [848A-B]
Moreover what was permitted was a challenge to the
recitals only. What the appellant's suit challenged. however
was not the recitals but the terms of the deed which none of
the parties was given liberty to derogate from. [849B-C]
(iv) A family settlement is not a transfer or creation of
interest in the property within the meaning of s. 37(a) of
the U.P. Court of Wards Act, 1912. It is in no sense an
alienation by a limited owner of family property. Apart from
that the two suits which were pending were compromised with
the full knowledge of the Court of Wards which was also a
party to both the suits and the Court of Wards in fact
accepted monies from G which were due to it. In these
circumstances the appellant was not entitled to press in his
favour the provisions of s. 37(a) of the U.P. Court of Wards
Act. [851C-852H]
Mst. Hiran Bibi v. Mst. Sohan Bibi, A.I.R. 1914 (P.C.)
44, Khunni Lal v. Govind Krishna Narain, I.L.R. 33 All. 35,
Man Singh v. Nowlakhbati, L.R. 46 I.A. 72 and Sureshwar
Misser v.. Nachiappa Gounden, L.R. 46 I.A. 72, and
Sureshwar Misser v. Maheshrani Misrainn L.R. 47 I.A. 233,
843
JUDGMENT:
CIVIL APPELLATE JUPRISDICTION: Civil Appeal No. 520 of 1961
Appeal by special leave from the judgment and order
dated September 23, 1958, of the Allahabad High Court in
First Appeal No. 392 of 1944.
S.P. Sinha, E.C. Agarwala, S. Shaukat Hussain and P.C.
Agarwala, for the appellant.
Niren De, Additional SolicitOr-General, Yogeshwar
Prasad and A.N. Goyal, for respondent No. 1.
Mudholkar, J. The substantial question which falls for
decision in this appeal iS as tO the legal effect of a deed,
EX. Y. 13, dated March 31. 1933 described in the paper-book
as a deed of partition., A subsidiary question also arises
for consideration which is, whether the validity of the
transaction evidenced by the deed is affected by reason of
the fact that the property comprised therein was at the time
of its execution, under the management of the Court of
Wards. According to the plaintiff the deed was invalid and
did not affect his right to a share in the property in the
suit. His contention failed both in the trial court as well
as in the High Court.
The property covered by the deed belonged t9 one
Kanhaiyalal who died on June 10, 1922 without leaving a
widow or any issue. This property, along with some other
property originally belonged to Kanhaiyalal’s grandfather
Chunnilal. It is said by some of the parties that by a will
executed by him in the year 1883 he devised his property in
favour of Kanhaiyalal and his brother Madho Prasad. Madho
Prasad, died during the life-time of Kanhaiyalal, leaving a
daughter Maheshwari Bibi. After Madho Prasad’s death
Kanhaiyalal entered into possession of the property which
had been bequeathed to Madho Prasad by Chunnilal. After
Kanhaiyalal’s death Kadma Kuar, his mother, entered into
possession of the entire property which was in the
possession of Kanhanyalal till his death. Kadma Kuar died on
October 14, 1937 and shortly thereafter the suit out
of which this appeal arises was instituted by Ram Charan
Das, the appellant. It may be mentioned that Kanhaiyalal and
Madho Prasad had a sister by name Mst. Pyari Bibi. She had a
son named Gopinath who died in the year 1934 leaving a
widow, Girja Nandini, the first defendant to the suit. The
plaintiff is the sixth son of Diwan Madan Gopal. Diwan Madan
Gopal was one of the two sons of Brij lal and Brijlal was
the only son of Deoki Nandan. Deoki Nandan himself was the
eider brother of Chunnilal. The plaintiff who is the
appellant before us is thus a collateral of Kanhaiyalal. It
is not disputed that he and his brothers were the next
reversioners entitled to succeed to Kanhaiyalal’s property
L/P(D)5SCI-15
844
after the death of his mother Kadma Kuar. To this suit he
joined Girja Nandini Devi, widow of Gopinath as defendant
No. 1 and it is she who is the contesting respondent before
us.
Soon after Kadma Kuar entered into possession of the
estate of Kanhaiyalal, she applied to the appropriate
authority for taking Over possession of management of the
property which was in the possession of Kanhaiyalal at the
time of his death whereupon the Court of Wards took over its
management under s. 10 of the U.P. Court of Wards Act, 1912
(IV of 1912). This property consisted not only of the
property which Kanhaiyalal had obtained under the will of
Chunnilal but also of the property which had been bequeathed
in that will to Madho Prasad and of which Kanhaiyalal had
obtained possession during his life time. Maheshwari Bibi,
the daughter of Madho Prasad laid a claim to the property
which had been bequeathed by Chunnilal on the ground that
the two brothers who took these properties under Chunnilal’s
will took them not as joint tenants but as tenants in
common. The claim made by her in this respect was examined
by the Court of Wards and upon Kadma Kuar agreeing, the
Court of Wards released half of the estate under its
management, that is, the share in the property which iS said
to have been bequeathed to Madho Prasad.
It is necessary to refer to three suits which came to be
instituted during the life time of Kadma Kuar, the first of
which is 30 of 1932. This was instituted by Gopinath who
claimed to be the next reversioner upon the ground that he
being the sister’s son of Kanhaiyalal, had become an heir
preferential to the present appell-. ant and his brothers
because of the passing of the Hindu Law of inheritance
(Amendment) Act of 1929. To this suit Maheshwari Bibi and
Kadma Kuar and the Court of Wards were made defend. ants. He
sought therein a declaration to the effect that the Court of
Wards had no right to release half the property in favour of
Maheshwari Bibi. This suit, however, was eventually
withdrawn. Two other suits, suit No. 53 of 1932 and 54 of
1932, came to be filed’ shortly thereafter. In the first of
these the present plaintiff was himself the plaintiff while
in the second, his broher Hanuman Prasad (defendant No. 6 in
the present suit) was the plaintiff. Both of them claimed to
be the nearest reversioners upon the ground that the Act of
1929 did not affect their right to the properties left by
Kanhajyalal. Each of them sought a declaration that
Maheshwari Bibi and Gopinath had no right of any kind in
respect of these properties. These suits were rounded’ on
the ground among others that Maheshwari Bibi had no right
because Chunnilal could not by his will devise the property
to her father Madho Prasad and Gopinath had none because he
was not in fact Kanhaiyalal’s sister’s son. Gopinath,
Maheshwari Bibi, Kadm.a Kuar and the Court of Ward’s, were
made parties to these suits. It is common ground’ that the
claims in both these suits were compromised. Under one of
the compromises the dispute with Maheshwari Bibi was
845
settled and we are no longer concerned with that matter.
Under the other compromise the dispute with Gopinath and
Kadma Kuar was settled. Decrees were drawn up in these suits
embodying the terms of each of the compromises arrived at
amongst the parties. The latter compromise was entered into
in suit No. 53 of 1932 and’ its date was March 31, 1933. The
document, Ex. Y-13 embodies the terms of the compromise in
suit No. 53 of 1932. To that document, amongst other, the
appellant, Gopinath and Kadma Kuar were parties.
According to the plaintiff the compromise in question
was not in law a surrender nor a family arrangement and that
in any case Kadma Kuar was not entitled to make a family
settlement and that what she did’ does not amount in law to
a surrender. Also according to him Kadma Kuar was a person
under disability being at the relevant time a ward under the
Court of Wards and, therefore, the transaction was void.
On behalf of the contesting defendant it was urged in
the courts below that the transaction amounted to surrender
of her estate by Kadma Kuar and alternatively that it was a
family settlement to which the plaintiff was one of the
parties and, therefore, he is estopped from challenging the
validity of the compromise, particularly so as he has taken
benefit thereunder and also because in view of the
compromise Gopinath had discharged the debts of Kanhaiyalal
which at law were recoverable from the property in question.
Alternatively the defendants contended that the transaction
evidenced by the document was an effective surrender by
Kadma Kuar in favour of Gopinath who was the presumptive
reversioner at that time.
At this stage it is desirable to point out that out of
the properties described in List A of the Schedule to the
plaint the plaintiff-appellant lays no claim to items 1 and
2 which are respectively described as properties at Hewett
Road, Allahabad, and Goshain Tola, Allahabad’ nor to item
7(1) described as 8 anna share in a Zamindari village. Such
a concession was made before this Court by Mr. S.P. Sinha,
counsel for the appellant, when the matter was argued before
this Court on April 14, 1964, when the hearing was adjourned
to enable the parties to arrive at a settlement. No
settlement was arrived at and the matter was re-argued
before this Court on March 8 and 9, 1965. Mr. Sinha has not
withdrawn the concession made by him on the earlier
occasion. We may also make a mention of the fact that Mr.
Niren De, the Additional Solicitor General has not argued
that Ex. Y-13 purports to show that Kadma Kuar surrendered
the widow’s estate. In the circumstances we proposed to
confine ourselves to the consideration of only one matter
and that is whether the deed (Ex. Y-13) is a family
arrangement and’ as such binding upon the plaintiff.
It seems to us abundantly clear that this document was
in substance a family arrangement and, therefore, was
binding on all
(D) 5SCI–16
846
the parties to it. Moreover it was acted upon by them. For,
under certain terms thereof one of the parties, Gopinath,
paid off certain liabilities to which the property which was
allotted to his share was subjected. According to Mr. Sinha,
however, the transaction evidenced by the document was not a
family settlement but only a surrender by Kadma Kuar though
in law it could not operate as a surrender firstly because
it was not of the entire estate of which she was in
possession as a limited owner and secondly because of the
two sets of persons between whom she divided the property
only one could be said to be her reversioner or reversioners
and the other a stranger or strangers. In our opinion the
document on its face appears to effect a compromise of the
conflicting claims of Gopinath on the one hand and the
present plaintiff Ram Charan Das and his brothers on the
other to the estate of Kanhaiyalal. In the document Kadma
Kuar is referred to as ‘first party’. Gopinath as ‘second
party’ and Ram Charan Das, the appellant before us and his
brothers as the ‘third party’. In cl.(1) of the document it
is stated “That the first party renounces all her claims to
the estate of her son M. Kanhaya Lal deceased according to
the provisions of this deed in favour of the Second’ and
Third party out of which the second party shall be the
absolute owner and possessor of the properties detailed in
List “A” annexed hereto; and the third party shall be the
absolute owner and possessors of the properties detailed in
the List “B” annexed hereto”. These recitals, taken in
conjunction with the surrounding circumstances indicate that
Kadma Kuar purported to recognise thereby the rights of
these parties to her son’s properties though earlier she
disputed them. Similarly the recitals “that the first party
shall remain in de facto management of Arrah Kalan property
for her life without any interference from the second or the
third party to whom she shall in no case be liable to render
any accounts and that after her death the second party or
his heirrs representatives, assigns or transferees and Babu
Sehat Bahadur Advocate Allahabad as representing the third
party or their heirs, representatives, assigns or
transferees shall manage and enter into possession of the
said village Arrah Kalan jointly”, indicate that the 2nd and
3rd party were disputing and interfering with the right of
Kadma Kuar to the management of one of the properties but
ultimately, under the document in question, they agreed not
to do so. Further, as we have already pointed out, three
suits had been instituted in the year 1932 concerning this
very property, one by Gopinath and the other two by the
plaintiff and his brother Hanuman Prasad. In his suit
Gopinath claimed to be the next reversioner. The plaintiff
appellant Ram Charan Das claimed that he and his brothers
were the next reversioners and not Gopinath. A similar claim
was made by Hanuman Prasad in his suit. It is worthy of note
that the plaintiff’s suit was compromised on the very day on
which this document, Ex. Y-13, was executed and that the
terms of the settlement were recited in Ex. Y-13. This
document further makes express mention of the two suits
which were
847
companion suits, suit No. 53 of 1932 and suit No. 54 of
1932, and says, categorically that these suits shall be
deemed to be compromised in terms of this deed. By
compromising those two suits the plaintiff and his brother
Hanuman Prasad withdrew their challenge to the claim put
forward by Gopinath to the estate of Kanhaiyalal. Prior to
this Gopinath had withdrawn his suit in which he had claimed
to be the next reversioner to the estate of Kanhaiyalal
after the death of Kadma Kuar. All these transactions are
quite evidently part of one main transaction which is the
settlement by the members of the family of all those
disputes once and for all. No doubt according to the plaint
allegation this was merely a temporary arrangement but no
reasons have been given nor any material was placed before
the Court from which it could be inferred that it was not
the intention of the parties that the disputes amongst them
should be finally settled’.
Mr. Sinha, however, places reliance upon the following
recital in Ex. Y-13 and contends that the arrangement was
not final. The recital runs thus:
“That in pursuance of and for the
purpose of this deed the First and the Third
Party do admit and recognise Babu Gopi Nath,
the Second party to be the son of Musammat
Peari Bibi the own sister of the late Munshi
Kanhaya Lal and the daughter of Musammat Kadma
Kuar the First Party; and similarly for the
purposes of and in pursuance of this deed, the
First and the Second party admit and recognise
the Third party as the sons of Dewan Madan
Gopal a great-grandson of M. Lalji, the
greatgrand father of M-Kanaya Lal as per
pedigree set up by them in suits Nos. 53 and
54 of 1932–referred to above. Provided always
that if the rights of the second or the third
party to the ownership and possession of their
respective properties as detailed in List ‘A’
items Nos. 1 to 5 and seven, in List ‘B’ item
Nos. 1, 2, 4, 5 and 8 respectively are ever
questioned they shall not be precluded from
setting up any claim, right or title,
propositions of law or fact consistent or
inconsistent with the recital of this deed,
and if the rights of ownership or possession
of the second party to item No. 6 in List ‘A’
annexed hereto or the rights of ownership or
possession of the third party to items Nos.
3.6 and 9 in List ‘B’ annexed hereto are ever
questioned they shall only be entitled to set
up claims only consistent with the
terms of
this deed.”
No doubt, the recognition of relationship claimed’ by the
second pary to Kanhaiyalal was admitted by the first and
third parties in pursuance and for the purposes of the deed.
Similarly recognition of the relationship of the. third
party by the first and the second parties to Kanhaiyalal was
admitted by the first and’ second parties and: also in
pursuance and for the purposes of the
848
deed. This, however, does not show that the settlement
arrived at and sought to be given effect to by the deed was
not intended to be final. As already stated, the document
read as a whole leaves no doubt that it was intended to be a
final settlement of the disputes amongst the parties. If it
were intended to be otherwise it would have been natural to
find an express statement somewhere in the document to show
that it was intended to be a temporary settlement only. The
proviso to the aforesaid clause was pressed in aid by Mr.
Sinha to support his contention that the settlement was only
temporary. The document itself was drawn up in English and
looking at the formal manner in which it is drawn up and
bearing also in mind the fact that it came into being when
litigations were, pending in court in which the parties to
the deed also figured as parties and was intended to
compromise those suits, it would be legitimate to infer that
it was drawn up or at least approved by a lawyer. In that
proviso at one place the word “recitals” and at another the
word “terms” were used. The expression “recitals” occurs in
the first part of the proviso and it is only with respect to
them that a party is given the liberty to set up in a
certain circumstance “any claim or right or title,
propositions of law or fact consistent or inconsistent with
the recitals in the deed”. Now the expression “recitals”
means, according to the Dictionary of English Law by Jowitt:
“Statements in a deed’, agreement or other formal
instrument, introduced to explain or lead up to the
operative part of the instrument.” It is stated further that
recitals are generally divided into narrative recitals which
set forth the facts on which the instrument is based and
introductory recitals which explain the motive for the
operative part. Where the recitals are clear and the
operative part is ambiguous the recitals govern the
construction. Normally a recital is evidence as against the
parties to the instrument and those claiming under them and
in an action on the instrument itself the recitals operate
as an estoppel, though that would not be so on a collateral
matter. It is not clear why this clause was put in. But even
if we assume that the parties did so because they were
apprehensive that the rights of the second or the third
party to the ownership and possession of the respective
properties–that is items 1 to 5 and 7 in List A allotted to
the second party and items 1, 2, 4, 5 and 8 in List B
allotted to the third party were liable to be challenged by
persons not bound by the settlement the reservation was only
of the right to challenge the explanatory or narrative
recitals in the documents but not of the right to challenge
the terms thereof. It therefore affords little assistance to
the plaintiff. The expression “terms” used in a document,
would, according to webster’s New World’ Dictionary, mean
“conditions of a contract, agreement sale etc. that limit or
define its scope or action involved.” Those parts of Ex-13
which prescribe the conditions upon which the disputes among
the parties were settled would be the terms of this document
and so far as these are concerned the proviso shows that
none of the parties was
849
given the liberty to derogate from them. Thus, far from
showing that the settlement arrived at was of a temporary
character the proviso read as a whole further fortifies the
conclusion that the settlement was to be binding upon the
parties for all time. We may add that the contentions now
raised on behalf of the plaintiff denying the rights of
Gopinath and of those who claim through him are not based
upon any challenge to the “recitals” in the documents, as
that expression is understood in law, but to the terms and
conditions contained in that document. It may be that the
properties to which the suit relates would’ fall under the
items allotted to Gopinath as specified in the first part.
of the proviso but no liberty has been reserved therein to
permit any of the parties to derogate from the terms and
conditions upon which the settlement was arrived at.
The view that the transaction is a family arrangement is
borne out by the decision of the Privy Council in Ramgouda
Annagouda v Bhausaheb(1). The facts of the case which have
been correctly summarised in the head note are briefly
these:
“A Hindu died in 1846, leaving a widow who
survived until 1912, and a daughter. On the
death of the widow A was heir to the estate.
In 1868 the widow had alienated nearly the
whole property by three deeds executed and
registered on the same day. By the first deed
she gave a property to her brother, by the
second she sold half of another property to A,
and by the third she sold the other half of
that property to her son-in-law. The signature
of each of the deeds was attested by the two
other aliences. A who survived the widow
for six years, did not seek to set aside any
of the alienations. After his death his son
and grandsons brought a suit to recover the
whole property.”
Upon these facts the Privy Council held as
follows:
“Their Lordships consider that the
decision of this case depends upon how far the
three documents can be taken as separate and
independent, or so connected as to form one
transaction.
The long lapse of time between the
execution of the deeds and the institution of
the suit has rendered it impossible to prove
what actually occurred between the parties on
that occasion. There is not sufficiently
definite evidence to come to a conclusion as
to how far any of those properties were
validly encumbered, or what was done with the
purchase money alleged to have passed on the
two deeds of sale. But the parties to the
documents included, or after so great a lapse
of time may be presumed in a very real sense
to have included, all persons who
(1) L.R. 54 I.A. 396.
LP(D)5SCI—17
850
had any actual or possible interest in the
properties-namely, the widow herself, her
brother, who was a natural object of her
affection and bounty, her son-inlaw, who was
the natural protector of the interests of her
daughter and grandson, and the nearest kinsman
on the husband’s side and the only person from
whom any opposition might be apprehended with
regard to dealings by the widow concerning her
husband’s estate.
Their Lordships conclude that all the
circumstances strongly point to the three
documents being part and parcel of one
transaction by which a disposition was made of
Akkagouda’s estate, such as was likely to
prevent disputes in the future and therefore
in the best interests of all the parties. The
three deeds appear thus to be inseparably
connected together and in that view Annagouda
not only consented to the sale of Shivgouda
and the gift to Basappa but these dispositions
formed parts of the same transaction by which
he himself acquired a part of the estate.”
In our case, however, there is fortunately only one
transaction and we have definite evidence to show that there
were disputes amongst the members of the family and it was
avowedly for settling them that the transaction was entered
into. Further we have material to show that all the persons
who can be said’ to be interested in the property were
joined as parties to the transaction. In that sense this
case is stronger than the one which the Privy Council had to
consider. We have therefore no hesitation in holding that
the plaintiff who has taken benefit under the transaction is
not now entitled to turn round and say that that transaction
was of a kind which Kadma Kuar could not enter into and was
therefore invalid.
Moreover acting on the terms of that document Gopinath paid
monies to the Court of Wards for obtaining release from its
management of the properties which were allotted to him. The
rule of estoppel embodied in s. 115 of the Indian Evidence
Act, 1872 would, therefore, shut out such pleas of the
plaintiff. Courts give effect to a family settlement upon
the broad and general ground that its object is to settle
existing or future disputes regarding property amongst
members of a family. The word ‘family’ in the context is not
to be understood in a narrow sense of being a group of
persons who are recognised in law as having a right of
succession or having a claim to a share in the property in
dispute. In Ramgouda Annagouda’s(1) case, of the three
parties to the settlement of a dispute concerning the
property of a deceased person one was his widow, other her
brother and the tlhird her son-in-law. The two latter could
not, under the Hindu Law, be regarded’ as the
(1)L.R. 54 I.A. 396.
851
heirs of the deceased. Yet, bearing in mind their near
relationship to the widow the settlement of the dispute was
very properly regarded as a settlement of a family dispute.
The consideration for such a settlement, if one may put it
that way, is the expectation that such a settlement will
result in esablishing or ensuring amity and goodwill amongst
persons bearing relationship with one another. That
consideration having been passed by each of the disputants
the settlement consisting of recognition of the right
asserted by each other cannot be permitted to be impeached
thereafter.
The final contention of Mr. Sinha is based upon s. 37(a)
of the U.P. Court of Wards Act, 1912. The relevant portion
of this provision runs thus:
“A ward shall not be competent-
(a) to transfer or create any charge on,
or interest in, any part of his property which
is under the superintendence of the Court of
Wards, or to enter into any contract which may
involve him in pecuniary
liability; ……………. “
Here the transaction in question is a family settlement
entered into by the parties bona fide for the purpose of
putting an end to the dispute among family members. Could it
be said that this amounts to a transfer of or creation of an
interest in property? For, unless it does, the action of
Kadma Kuar would not fall within the purview of the
aforesaid clause of s. 37. In Mst. Hiran Bibi v. Mst. Sohan
Bibi(1) approving the earlier decision in Khunni Lal v.
Govind Krishna Narain(2) the Privy Council held that a
compromise by way of family settlement is in no sense an
alienation by a limited* owner of family property. This
case, therefore, would support the conclusion that the
transaction does not amount to a transfer. Mr. Sinha,
however, contends that the transaction amounts to creation
of an interest by the ward in property which was under the
superintendence of the Court of Wards and in support of his
contention relies on Man Singh v Nowlakhbati(3). In the
first place once it is held that the transaction being a
family settlement is not an alienation, it cannot amount to
the creation of an interest. For, as the Privy Council
pointed out in Mst. Hiran Bibi’s(1) case in a family
settlement each party takes a share in the property by
virtue of the independent title which is admitted to that
extent by the other parties. It is not necessary, as would
appear from the decision in Rangasami Gounden v. Nachiappa
Gounden(4) that every party taking benefit under a family.
settlement must necessarily be shown to have, under the law,
a claim to a share in the property. All that is necessary is
that the parties must be related to one another in some way
and have a possible claim to the property or a claim or
(1) A.I.R. 1914 P.C. 44.
(2) IL..R. 33. An. 356. (3) L.R. 53 I.AII.
(4) L.R. 46 I.A. 72
852
even a semblance of a claim on some other ground as, say,
affection. In the second place, in the case relied upon by
Mr. Sinha there was no question of the transaction being a
family settlement. It was sought to be supported upon the
ground that it was a surrender. The Privy Council, however,
held that it was not a bona fide surrender evidently because
the widow was to get a very substantial amount for
maintenance from the reversioners in whose favour she had
purported to surrender the estate and also held that there
was in fact no necessity for a surrender of interest of the
widow. Since it was not a bona fide surrender it was
regarded as one creating only an interest in the property
which was under the superintendence of the Court of Wards.
Had’ it been a bona fide surrender s. 60 of the Bihar Court
of Wards Act upon which reliance was placed in that case
would not have been attracted. Indeed, reliance was placed
before the Privy Council on the decision in Sureshwar Misser
v. Maheshrani Misrain(1) in support of the appellant’s
contention that the transaction was valid. While
distinguishing this case the Privy Council observed:
“In that case there were serious disputes
in the family as to title, and the next
reversioners to the son sued the widow and her
daughters to set aside the will of her husband
under which the daughters were entitled to
succeed to the immovable property on the death
of the son without issue. A family compromise
was agreed to, and in performance of it the
widow surrendered all her rights of sucession
to the immovable property, and the plaintiff
the next reversioner and her daughters gave
her for her life a small portion of the land
for her maintenance. The Board held that the
compromise was a bona fide surrender of the
estate and not a device to divide it with the
next reversioner, the giving of a small
portion of it to the widow for her maintenance
not being objectionable, and’ consequently
that the transaction was valid under the
principles laid down by the board in Rangasami
Gounden v Nachiappa Gounden (L. R. 46 I.A.
72)”.
We may further point out that this decision does not refer
to their decisions in Mst. Hiran Bibi v Mst. Sohan Bibi(2)
and Khunni Lal v. Govind Krishna Narain(3) and it cannot be
assumed that they intended to depart from their earlier
view.
Apart from that it may be pointed out that the two suits
which were then pending were compromised with the full
knowledge of the Court of Wards which was also a party to
both the suits and
(1) L.R. 47 I.A. 233.
(2) A.I.R. 1914 P.C. 44.
(3) .I.L.R. 33 All. 356.
853
the Court of Wards in fact released the estate by accepting
from Gopinath monies which were due to it. In these
circumstances we hold that the plaintiff is not entitled to
press in aid the provisions of s. 37(a) of the U.P. Court of
Wards Act.
For all these reasons we uphold the decree of the trial
Court as affirmed by the High Court and dismiss the appeal
with costs throughout.
Appeal dismissed.
854