TMI Blog1955 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-9-19 H: Nathmal Das H: Jwala Prasad H: Bhawani Shankar Mst. Ram Pyare Bhukhan Saran Banwari Lal Sital Prasad Shyam Lal Pyare Lal (dead) (dead) (deft.5) Brij Lal Mukand Ram (dead) (Plff.No.1) The plaintiff's case is that the properties in the four suits belonged to Nanak Chand who died on 23-7-1856 leaving a widow Mst. Pato and three daughters, Maha Devi, Durga Devi and Har Devi. On his death, his widow Mst. Pato succeeded. She died in January 1875 and the estate then went to the three daughters. Of them, Durga Devi died in 1888, Maba Devi in 1912 and Har Devi in 1919. The plaintiff's rights as reversioner accrued on Har Devi's death on 10-9-1919. But before this came certain alienations which the plaintiff challenges in the present suits. The suits were filed on 8-9-1931. In Civil Appeal No. 92 of 1950, the challenge is to a mortgage effected by Durga Devi on 3-3-1887 in favour of Sahu Bitthal Das. The mortgagee sued on his mortgage, obtained a decree and in execution purchased the properties himself. The plaintiff's case is that Durga Devi only had a life estate and, as there was no necessity, the mortgage and the subsequent auction purchase do not bind him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and Sital Prasad. The defendants asserted that they also took separate and absolute estates immediately and said that each has been holding and dealing-with the properties so divided, separately and as absolute owners, ever since. Thus, at the dates of the transfers now challenged, each alienor had an absolute title to the properties alienated and the plaintiff has none. The trial Court held that though most of the properties in Pato's hands came from her husband Nanak Chand, the plaintiff bad not shown that the properties with which his four suits were concerned formed part of Nanak Chand's estate. An issue was also framed about the family settlement and one about estoppel. On both those point the learned Judge found against the plaintiff. The result was that all four suits were dismissed. The High Court reversed these findings on appeal and held that all the properties, including the ones in suit, formed part of Nanak Chand's estate.The learned Judges also held that though there was a family arrangement, it was a purely voluntary settlement made by Pato and was not made as the result of any dispute and that in any case it did not bind the plaintiff who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the stronger, for it is clear that Pato laid claim to them as her own properties of which she could dispose by will, for that is what the document of 1864 really is. If, on the other hand, they were her properties, as the defendants say, then she had the right either to gift them outright or to settle them as the defendants say she did by way of a family arrangement. In either case, the matter was fully fought out and neither side was misled. The real question we have to decide is, has the family arrangement been proved? We think it has. The direct evidence on this point is that of Shyam Lal (D.W. I in C.A. 94/50) and the first defendant there. He tells us that he had money lending transactions with Har Devi, Kanhaiya Lal, Shyam Lal and Pyare Lal on unregistered bonds from 1902 till 1910 and from 1910 on registered mortgage bonds. He says that- They (that is to say, Har Devi, Mukand Ram, Kanhaiya Lal, Shyam Lal and Pyare Lal) showed one copy of a deed of will and said that Mst. Pato had given the property to her daughters and grandsons........ I am illiterate and Kanhaiya Lal brother of Mukand Ram had the deed of will read over to me at the time of mortgaging property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial precedent about the construction of that document, a precedent with which we respectfully agree. She says there that the property belongs exclusively to me without the participation of anyone else . That assertion, coupled with the fact that she purported to dispose of the property after her death (which she could not have done as a limited owner), and taken in conjunction with the subsequent conduct of the daughters and that of the grandsons, imports admissions by them that that was her claim and leaves us in little doubt about what she meant. We therefore reach the same conclusion as the Judicial Committee and hold that Mst. Pato claimed an absolute estate in 1864. We will now examine the conduct of the family after Pato's death and the claims put forward by them from time to time. First, we have the statement of Mukand Ram in the witness box (P.W. 11 in C.A. 91/50) that on Pato's death her daughters took separate possession of the properties in the following villages and towns: Har Devi Qutabpur Amawti. Shakerpore. Lalpur. Bagh Alam Sarai. Houses, Shops, etc. in Bazaar Kot, Sambhal. Durga Devi. Keshopur Bhindi. Tatarpore Ghosi. Half Bilalp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Devi stretching from 1877 down to 1916. We tabulate them below with the recitals she made about her title. 17-1-77 Mortgage Qutabpur Amawti owned by me . Ex. LL-1 (C.A. 94) 11-1-78 do do Owner: devolved on me from my Ex. 2J1 mother . (C.A.91) 20-3-81 do do Owner: right of Ex.2H1 inheritance from (C.A.91) my father . 7-9-83 Sale. Lalpur Owner: right of inheritance . Ex. 2Gl (C.A. 91) 23-8-87 Mortgage Qutabpur Amawti No recital Ex.L (C. A. 92) 15-7-05 do do Absolute owner with KanhaiyaEx. BB-1 (C.A. 94) Laland Mukand Ram. 19-11-08 do do recital Ex. M-1 (C.A. 94) 14-11-14 do do Ex. V (C.A. 92) 23-3-15 do do Owner: with Ex.X (C.A. 92) Mukand Ram 17-2-16 do do Mukand Ram With Mukand Ex. N-1 (C.A. 94) Ram. No recital 28-3-16 do do Owner: with Mukand Ram and his son Ex. (G.A. 94) Ram Gopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanhaiya Lal and Mukand Ram. It may be that the arbitrator awarded it jointly or they agreed to hold it on that basis. We do not know. All we know is that they mortgaged it jointly. Behrampur fell to Mukand Ram's share and in the mortgage of the property in 1918 Har Devi joined with Mukand Ram and Murari Lal's son Bhukan Saran in one case and with Pyare Lal in the other. But except for the last two mortgages of 1918 the conduct of Har Devi and her sons for 39 years from 1877 to 1916 as disclosed in these deeds is only consistent with the family arrangement which the defendants allege, for on no other hypothesis could either the mother or the sons have laid claim to an absolute estate. We will next turn to Durga Devi. She died in 1888 but before she died she mortgaged Keshopur Bhindi which had fallen to her share on 3-3-1887 by Ex. U-1 (C. A. 93) and claimed to be the owner. Then there is Maha Devi. The only direct evidence we have of her conduct is a written statement that she filed in O.S. 177/97, Ex. 2BI (C.A. 91). She asserted there on 5-1-1898 that she had been in proprietary possession and occupation of her divided share of the property obtained by her from h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact in issue, namely the family arrangement, because, in the absence of section 32(3), they are not admissible for that purpose, but as their conduct is relevant these statements are admissible as evidence of that conduct. Maha Devi's statement is Ex. 2-Al (C.A. 91) and Har Devi's Ex. 2-Fl (C.A. 91). Both speak of an arrangement effected by Pato in her life time and say that they entered into separate possession of the properties by reason of that arrangement. Har Devi says in addition that the grandsons were included in the arrangement and given properties too. Therefore, we know that this is the title under which each claimed to hold in O.S. No. 177/97. It is proof of their assertion of this title at that early date and though it is no proof of the truth of those assertions it is proof of the fact that the assertions were made and that is all we need at the moment. We turn next to the conduct of the grandsons, and first we will consider the plaintiff Mukand Ram and his brother Kanhaiya Lal. The plaintiff attained majority in 1890 and from that date down to 1922 we have a series of assertions of a title that can only spring from the family arrangement. First, we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A.94) 21-2-10 do Bilalpat Sabz. do Ex. AA-1(C.A 94) Pyare Lal also made two transfers on his own- 23-9-18 Sale Bilalpat. Devolved on Ex. 15(C.A. 94) me from Nanak Chand by right of inheritance. 2-1-20 do do do Ex. 18 (C. A. 93) Lastly, there is Bhukban Saran, who is Maha Devi's daughter's son. He transferred as follows: 26-3-18 SaleHouses, etc.in Absoluteand Sambhal. exclusive Ex. MM-1 (C.A.92) owner. 9-1-21 Relinquish- Bilalpat do Ex. DD-1 (C.A. 93) ment. These documents disclose a long line of conduct on the part of the various members of the family and show that from 1877 down to 1922 each dealt with the properties in his or her possession as absolute owner and set up exclusive proprietary title to the properties transferred. It is true the source of title was not consistently stated, sometimes it was said to be Pato and at others Nanak Chand, but the assertion to a separate, exclusive and absolute title in each is common all through. There is only one way in which they could have got these exclusive titles and that is by a family arrangement, for whether the property was Nanak Chand's or whether it was Pato's, in neither event could any one of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after Maha Devi's death, this time against alienees from Maha Devi. This is the suit that went up to the Privy Council, Mst. Hardei v. Bhagwan Singh(A.I.R. 1919 P.C. 27.). She failed again'. Having failed against Maha Devi in the 1897 litigation, Har Devi next tried her luck against Maha Devi's grandson (daughter's son) Bhukhan Saran, after Maha Devi's death. The suit is O.S. 52/14, Ex. 78 (C.A. 94). This time she succeeded with respect to some items and failed as regards the rest. But again the result is irrelevant: Exs. 6 and 8 (C. A. 94). Now what we are examining at the moment is whether Shyam Lal, D. W. I in CA. 94, is to be believed when he says that Mukand Ram, among others, told him about the family arrangement tinder which Pato had divided all her property between her daughters and their sons. It is evident from what we have said above that Mukand Ram had been consistently asserting such a title for 31 years from 1891 to 1922 despite his aberrations in 1890 and 1895. In particular he did this whenever he wanted to borrow money or to sell property: and he makes a significant admission in the witness box as P. W. 11 in C. A. 91 that- In the mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was absolute, the sons got absolute estates. If it was the limited title of a Hindu widow, they obtained a limited title good during her life, and, as the daughters consented to the gifts and obtained properties for themselves as a result of the arrangement that resulted in these gifts, they would not be permitted to question the gifts; and the Privy Council so held in Har Devi's suit against the alienees from Maha Devi: Mst. Hardei v. Bhagwan Singh(A.I.R. 1919 P.C. 27.). But so far as the grandsons are concerned, the mere,' fact that each received a separate gift from Pato at a time when they were not competent to assent or to dissent would not in itself bind them. To achieve that result, there would have to be something more; and it is to that something more that we will now direct our attention. But before doing that, we will pause to distinguish Rani Mewa Kuwar. Rani Hulas Kuwar ([1874] 1 I.A. 157, 166.); Khunni Lal v. Gobind Krishna Narain ([1911] 38 I A. 87, 102.), and Ramsumran Prasad v. Shyam Kumari ([1922] 19 I. A. 342, 348.). It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not apply either. Therefore, the oral arrangement of 1875 would be sufficient to pass title in this way and that, in our opinion, is what happened. But these rules only apply to the parties to the settlement and to those who claim through or under them. They cannot be applied to the minor sons who were not parties either personally or through their guardians and who do not claim title' either through Pato or her daughters. So far as they are concerned, what they received were gifts pure and simple and the only assent that could be inferred from mere acceptance of the gift and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others; and for this reason. When Mukand Ram attained majority he had two titles to choose from. One from Pato as a limited owner coupled with the assent of the daughters to her gift to him. In that case, he would hold a limited estate till the reversion opened out. The gift would be good during Pato's life time because she had that title to convey, and thereafter, till the three daughters died, because they assented to it and obtained considerable benefit for themselves from the transaction out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement. The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who' with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it. So far as the Hindu law is concerned, Lord Dunedin explained in Rangaswami Gounden v. Nachiappa Gounden([1918] 46 I.A. 72, 86,87.), a case in which a widow gifted properties to her nephew, that though the reversioner is not called upon to exercise his right to avoid until the reversion falls in and so no assent can be inferred from mere inaction prior to the death or deaths of the limited owner or owners, he is not bound to wait and of course something might be done even before that time which amounted to an actual election to hold the deed good . Ramgouda case([1927] 51 I.A. 396, 402.) is an illustration of what that somethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a direct personal estoppel against the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made by two of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees but to the first defendant who obtained title to the properties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the representation to the first defendant was made in 1910 before the first defendant's purchases. It was made by Kanhaiya Lal and Mukand Ram as as well as by other members of the family. We have already referred to the first defendant's evidence. This case would therefore be governed by Dhiyan Singh v. Jugal Kishore(1952 S.C.R. 478.) in any event. But we need not elaborate this further because of the other principle which, in our opinion, is sufficient to dispose of both the present cases. The result is that both appeals are allowed. The decrees of the High Court -are set aside and those of the first Court dismissing the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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