TMI Blog1965 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement 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 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 superintende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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