MAHAJAN J.: - (1.) THE dispute in this appeal concerns the zemindari and house properties last owned by Shah Chiranji Lal who died at a young age on the 14/05/1913, leaving him surviving a widow, Mst. Khem Kuer, and his mother Mst. Mohan Kuer, besides a number of collaterals, indicated in the pedigree table below :--
(2.) MST. Khem Kuer, the young widow of Shah Chiranji Lal was murdered on the 28th August 1919 and MST. Mohan Kuer, the mother, died on the 5/12/1932. MST. Prem Kuer, the respondent in the appeal, claiming herself to be the heir to Shah Chiraji Lal as his sister, brought the suit giving rise to this appeal in the court of the civil judge, Agra, against, amongst others, MST. Phool Kuer, the present appellant, for recovery of possession of the properties of Shah Chiranji Lal and mesne profits. Mst. Prem Kuer joined her half-sister Mst. Ram Kuer and their sons as plaintiffs along with herself. In the array of defendants were impleaded Mst. Phool Kuer and Mst. Khem Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others as transferees of the properties. The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No. 120 of 1915, that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance (Amendment) Act 11, 1929, were not entitled to claim it. It was further pleaded that an the death of Khem Kuer in 1919 Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance. The learned additional Civil Judge who tried the suit, dismissed it holding that the compromise of 1915 was a bona fide' settlement of a "bona fide' dispute and was binding as a family settlement being for the benefit of the estate, that Mohan Kuer surrendered 209 the estate validly in favour of jwala Prasad and Madho Lal they entered into possessions of its after the death of Khem Kuer Some of the transferees who had been impleaded as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties Mst. Prem Kuer preferred an appeal to the High court of Judicature at Allahabad against the decree dismissing her suit. The High court by its judgment dated the 28/10/1943 allowed the appeal, reversed the findings of the learned additional Civil Judge on the above issues and decreed the plaintiffs' suit with costs. Some of the transferee-defendants compromised with the plaintiff-appellant in the High court and the appeal was decided in terms there of in their favour.
(3.) TWO main points which are in controversy In this appeal and require consideration, are, 1.Whether the compromise in suit No. 120 of 1815 amounts to a family settlement and 2. Whether the plaintiffs respondents, and, Whether the surrender by Mst. Mohan Kuer was a valid surrender under Hindu law. In order to appreciate the respective contentions of the parties, it is necessary to set out shortly in chronological order the history of the events which has resulted in this controversy As already stated, Shah Chiranji Lal died on the 14/05/1913, leaving considerable movable and immovable property. At the time of his death, his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 89 years old. The two reversioners, Shah Jwala Prasad and Shah Madho Lal made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13/05/1913, a day before his death. On the 10th of September 1913, an application was made by Mohan Kuer for herself and as guardian of Khem Kuer challenging the genuineness of the will and claiming that tine estate of the late Shah Chiranji Lal should be mutated in their names. Notice of this application was given to the two reversioners but they thought It prudent not to appear and to contest the contentions raised by the two ladies, with the result that the inheritance of the late Chiranji Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28/10/1913. The reversioners had also made application in pending suits for getting themselves Impleaded as legal representatives. Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases. Pending decision of these matters, on the 11/05/1915, suit No. 120 of 1915 was filed by Jwala Prasad and Madho Lal on the bagis of the alleged will of the 13/05/1913. On the same day an application was made for the appointment of a receiver and an Interim order appointing a receiver was passed" by the court. On the 18/05/1915, Moban Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver. By an order dated the 23/09/1915. the receiver was discharged and it was held by the Civil Judge that the plaintiffs had no 'prima Facie' case and that the will propounded by them was a suspicious document. On the 18/12/1915, suit No. 120 of 1915 was compromised between the parties. This compromise is In the following terms: "1. The plaintiffs relinquish their Claim for possession over the estate of Shah Chiranji Lal 2. The defendants shall have all those rights to the estate of Shah Chiranji Lal, which she has as a Hindu widow according to law. After the death of the two Musammats the plaintiffs in equal shares and After them their heirs, who might have the right of survivorship one after the other, shall be the owners of the estate of Shah Chiranji Lal. 3. The name of Mst. Mohan Kunwar defendant against one half of the property in lieu of maintenance, shall continue. 4. Mst. Mohan Kunwar and Mst. Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property cash ornaments, amount of decrees and documents. household goods and other movables, which they might have in their possession. The plaintiffs or anyone else shall have no power to interfere or to ask for rendition of accounts. 5. In case Mohan Kunwar defendant dies first, Mst. Khem Kunwar shall, as a Hindu widow, become the owner in possession of the entire property, of Which Mst. Mohan Kuer might have been in possession in any way, subject to the provisions of condition 210 No. 4. In case Mst. Khem Kuer defendant dies first, Mst. Mohan Kuer shall as a Hindu widow, become the owner in possession of the entire property of which Mst. Khem Kuer might nave been in possession in any way, subject to the provisions of condition No. 4." In accordance with the terms of this compromise suit No. 120 of 1915 was dismissed. In the proceedings that were pending for substitution of names the court on the 22/12/1915 ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal. ;