SHINGHAL, J. - (1.) THIS second appeal arises from the appellate judgment of the learned Senior Civil Judge, Jaipur District, dated April 25, 1959 upholding the trial court's decree dated April 9, 1958 in the plaintiffs' favour.
(2.) THE property which is the subject matter of dispute is situated in village Chitanu, Tehsil Jamwa Ramgarh, in the district of Jaipur. It was part of the property held by Ramchandra, the common ancestor of the parties whose relationship would appear from the following pedigree - Ramchandra Laxmi Narain d. s. 2003-4 Ram Sahai d. s. 2012 Sheo Nath d. s. 1974 Smt. Suudari d. s. 2010 Bhagwan Sahai (defendant) Sualal (plaintiff) Murlidhar (plaintiff) After Ramchandra's death, his three sons Laxmi Narain, Ram Sahai and Sheo Nath divided his property into three equal shares in Smt. 1970. each of them taking possession of his one-third share. Sheo Nath died in Smt. 1974 leaving behind his widow Smt. Sundari who succeeded to her widow's estate. All the same, a dispute arose between Laxmi Narain and Ram Sahai in regard to Sheo Nath's property and they drew up agreement Ex. A. 1 on Jeth Badi 12, Smt. 1975, to settle it amicably. This did not however end the dispute and the agreement was rescinded and replaced by a new agreement Ex. A. 2 dated Asoj Badi 15, Smt. 1984 (1927 A. D. ). Both Laxmi Narain and Ram Sahai signed that agreement. According to it, Smt. Sundari was allowed to hold the one-third share of her husband Sheo Nath for her life-time and it was agreed between the brothers that they would divide it equally after her death. Laxmi Narain died in Smt. 2003-4 and Smt. Sundari in Smt. 2010, the exact date of her death being January 10, 1954. Thus far, the facts are not in dispute in this Court. According to the plaintiffs, their father Ram Sahai inherited Sheo Nath's property as he survived his widow Smt. Sundari and was his nearest heir when the succession opened on her death. Ram Sahai died on Mah Badi 6, Smt. 2012, corresponding to 17, February 1956. THE version of the plaintiffs is that the defendant then took forcible and wrongful possession of Sheo Nath's property mentioned in paragraph 6 (A) 3 and 6 (A) (4) of the plaint and this gave rise to the present suit which was instituted on March 11,1957, for possession of the aforesaid property and for a declaration that the plaintiffs were the owners of Sheo Nath's entire property. THEre was also a claim for mesne profits. According to the defendant, on the other hand, he and his uncle Ram Sahai took over joint possession of Sheo Nath's property on the death of his widow and it was agreed between them that they would divide it equally after performing her funeral feast. Ram Sahai died before the feast could be performed and his sons and the defendant took possession of their respective shares in Sheo Nath's property. So the difference between the two versions is that while the plaintiffs contend that their father Ram Sahai succeeded to the property of Sheo Nath on the death of his widow and was in possession when the defendant took over forcible and wrongful possession of a part of that property, the defendant's version is that the property was divided by mutual consent. The Munsiff, Jaipur District, tried the suit. He found, inter aila, that the defendant had not taken forcible possession of the two properties just referred but that agreement Ex. A. 2 of Asoj Badi 13, Smt. 1984 was void as it was in contravention of sec. 6 of the Transfer of Property Act and the plaintiffs were entitled to succeed in their claim for a declaration of their title and possession. He did not however allow the claim for mesne profits. Against that judgment and decree, the defendant preferred his first appeal which was dismissed by the impugned judgment of the learned Senior Civil Judge. Before him, only the trial court's finding on issue No. 5, which related to the validity of agreements Ex. A. 1 and Ex. A. 2. was challenged and the learned Judge upheld the trial court's view. He disallowed the argument that agreement Ex. A. 2 operated as an estoppel against the plaintiffs on the ground that it was not acted upon during the life-time of Ram Sahai. It is in these circumstances that the defendant has preferred this second appeal. In this Court also, the dispute is confined to the validity of agreement Ex. A. 2 which was admittedly made between Laxmi Narain and Ram Sahai on Asoj Badi 15, Smt. 1984. Mr. Agrawal, learned counsel for the defendant-appellant, has argued that the agreement is valid and binding and that the learned Judge of the lower appellate court was quite wrong in applying sec. 6 of the Transfer of Property Act because that Act was not in force in the former Jaipur State at the time of the agreement. The learned counsel has put his argument in three ways. Firstly, he has argued that as the Transfer of Property Act was not in force in Smt. 1984, agreement Ex. A. 2 was enforceable and was binding on the parties concerned. For this he has placed reliance on Zabta Khan vs. Said Habib (l), Padmun vs. Achar (2), Naranjan Singh vs. Dharam Singh (3) and Gobinda vs. Chanan Singh (4 ). Secondly, he has argued that there was nothing in the Hindu law to make the agreement illegal and that paragraph 30 of Mulla's 'principles of Hindu Law' (twelfth edition) to the contrary is based on sec. 6 of the Transfer of Property Act, 1882, and not on any text of the Hindu Law. To support his argument, the learned counsel has placed reliance on Ram Nirunjun Singh vs. Prayag Singh (5), which was a case relating to the period when the Transfer of Property Act had not come into force. He has also made a reference to the Lahore cases referred to above in this connection. Thirdly, the learned counsel has argued that agreement Ex. A. 2 was really not by way of a transfer of any right or interest in Sheo Nath's property but that it was a family settlement or arrangement of the nature of a contingent contract which has been recognised to be valid in a number of decisions. Apart from Ram Nirunjun Singh vs. Prayag Singh (5), the learned counsel has cited Nasir-ul-Haq vs. Faiyaz-ul-Rahman (6), Mst. Hiran Bibi vs. Mst. Sohan Bibi (7), S. T. U. V. R. Muthuraman Chettiar vs. Ponnuswamy Udayar (8), Kanhailal vs. Brijlal (9), Annada Mohan Roy vs. Gour Mohan Mallik (10), Mst. Binda Kuer vs. Lalita Prasad Choudhary (11) and Chander vs. Indraj (12 ). I shall deal with these points one by one. It is not disputed that the Transfer of Property Act was not in force in the former Jaipur State at the relevant time and that clause (a) of sec. 6 of that Act prohibiting the transfer of the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, could not, in terms, apply to the present case. But there is no valid reason why these principles of the Transfer of Property Act, which are fair and equitable, should not be held to be applicable when they are in accord with the religious tenets and the personal law of the parties. To this other aspect of the matter, I shall return in a while when I consider the second argument of Mr. Agarwal. Suffice it to say that their Lordships of the Privy Council did not dissent from the view that the principles of the Transfer of Property Act should be followed in areas where the Act was not in force : Kedar Moidean vs. Nepean (13 ). The point directly arose for consideration in M/s. Ram Gopal Dula Singh vs. Sardar Gurbux Singh Jiwan Singh (14), for the Transfer of Property Act was not in force in the Punjab. It was held that the principles of the Act were applicable because they were based on justice, equity and good conscience and that only the rules of procedure contained in that Act were not applicable. The decision was given quite sometime after the cases cited by Mr. Agrawal had been decided and took note of a number of earlier decisions of the Lahore High Court including Naranjan Singh vs. Dharam Singh (3) and Gobinda vs. Chanan Singh (4), as well as Zabta Khan vs. Said Habib (1 ). It was also held that those decisions were contrary to the Hindu Law and their Lordships did not therefore follow them. It appears that Padmun vs. Achhar (2) was not brought to their Lordships' notice. It was a judgment of a learned Single Judge and was in line with the other decisions with which their Lordships disagreed and it cannot therefore be said to express the considered opinion of the Punjab High Court. It would thus appear that Ram Gopal Dula Singh's case (14) completely answers the argument of Mr. Agrawal. However, it is not necessary to examine the point further for, as I shall presently show, the case can easily be decided on the principles of the Hindu Law, apart altogether from the principles contained in sec. 6 of the Transfer of Property Act. Under the Hindu law, when the male holder of an estate dies and it is held by an heir, as a limited holder, she holds it for life. No one can claim a vested interest in the succession as long as the limited holder is alive. A fortiori, there is no vested interest, at the date of the male holder's death, in a Hindu reversioner who, as has been well put in Mayne's Hindu Law (Eleventh edition, paragraph 663) "has no right or interest in praesenti in the property which the female holder holds for life. " The reversioners are therefore nothing but expectant heirs with a spes successionis. The reason is that no one of the several Hindu reversioners can, at any given time, claim that he or she would succeed to the estate of the last male holder because it may so happen that a person who is a distant reversioner may survive a proximate reversioner or the rights of a reversioner may be defeated by some other reason like a birth or an adoption in the family. So the crucial date which opens the succession to the reversioner is the date of the death of the female heir and this is why the Hindu Law has not recognised the transfer of a mere chance of succession howsoever it may be clothed or camouflaged. I am fortified in this view by a string of decisions by their Lordships of the Privy Council. I shall refer, only to Sham Sunder Lal vs. Achhan Kunwar (15), V. Venkatanarayana Pillai vs. Subbammal (16), Janaki Ammal vs. Narayanasami Aiyer (17), Amritnarayan Singh vs. Gaya Singh (18), Thakurain Harnath Kuar vs. Thakur Indar Bahadur Singh (19) and Annada Mohan Roy vs. Gour Mohan Mullick (20 ). Under the pure Hindu law, therefore, apart altogether from any consideration of sec. 6 of the Transfer of Property Act, it is not permissible for a reversioner to enter into a bargain regarding his chance of succession on the death of the limited holder or to be bound in a contractual engagement in regard to it. So also, a mere spes successionis cannot be assigned, relinquished or transmitted to others in any way. It is no doubt true that paragraph 30 of Mulla's Hindu Law, on spes successionis, while stating that the right of a person to succeed as heir on the death of a Hindu is a mere spes successionis i. e. a bare chance of succession, and that it is not a vested interest and cannot therefore be validly transferred, makes a reference, in the foot-note, to sec. 6 of the Transfer of Property Act, 1882, and that, in turn, is likely to give an impression that the proposition enunciated in the paragraph draws its authority from that section, but, as I have shown, that really is not so. Some of the cases cited above were in fact of a period when the Transfer of Property Act was not in force. The true position therefore is that under the pure Hindu law the property belongs to the limited heir, who is its owner and during her life-time no one else has any right of the nature of property in it. It follows therefore that a person without any vested right in a property cannot make it the subject of a bargain or contractual obligation or engagement of any kind. Ram Nirunjun Singh's case (5), on which considerable reliance has been placed by Mr. Agrawal, was quite different. It was not a case of a reversionary interor. The property belonged to Thakur Singh who had a son Prayag Singh by his first wife and three sons Ram Nirunjun Singh, Jung Bahadoor Singh and Dund Singh by his second wife. Prayag Singh claimed an eight-anna share being the only son of his mother, while Ram Nirunjun Singh/who alone had attained majority at the time of Thakur Singh's death, contended that each of the brothers had a four-anna share only. The dispute was compromised soon after, by an agreement between the brothers, Ram Nirunjun Singh acting as the guardian of his minor brothers. According to the agreement, Thakur Singh's estate was to be divided equally between the four brothers, with the exception of certain trust land in which Prayag Singh was allowed an excess share. It was agreed that if any of the brothers should die without issue, the surviving brothers would succeed to his heritage in equal shares, none of them having any claim or contention against the other on the ground of commensality and joint tenancy. Jung Bahadoor and Dund Singh died childless and as the revenue court rejected Prayag Singh's application for an equal share with Ram Nirunjun Singh in the property of Jung Bahadoor and Dund Singh, he brought a suit claiming a half share in terms of the compromise. Their Lordships took the view that the compromise was not the conveyance of an expectant right, but it was an agreement to divide a particular property in a certain way on the happening of a particular contingency and that there was nothing in the Hindu law to make the agreement void. It was held to be in the nature of a contingent contract and the agreement was therefore upheld. . So it was a case in which property had already devolved on the sons of Thakur Singh and they settled their disputes about their respective shares in it on certain terms and conditions, by way of a contingent contract. The decision in that case cannot avail the appellant for these reasons. The Lahore cases relied upon by Mr. Agrawal were disapproved in a later Bench decision of that Court in Messrs. Ram Gopal Dula Singh vs. Sardar Gurbux Singh Jiwan Singh (14), to which reference has been made above. It was held by their Lordships that if the transfer of reversionary interest was upheld and enforced, it would defeat the Hindu law. This leaves for consideration the third argument of Mr. Agrawal that agreement Ex. A-2 was permissible as a family arrangement or settlement of the dispute between Laxmi Narain and Ram Sahai and that it was not therefore a contract or a transfer of expectant right.
(3.) IT will be recalled that Ex. A-2 replaced an earlier agreement and it provided that the one-third share of Sheonath would remain in the possession of Smt. Sundari, his widow, for her life-time and that on her death it would be divided equally between the two surviving brothers Ram Sahai and Laxmi Narain. The settlement or agreement was not therefore co-related to any property which had already devolved on the contracting brothers and for which it had become necessary for them to arrive at a family settlement. IT purely related to Sheonath's property which, as is obvious, was inherited by Smt. Sundari and was owned by her as a widow's estate. No one else had any right, title or interest in the property, the interest of the brothers being an expectant interest which may not have matured in their favour or in their life-time because it was an interest which was defeasible by circumstances like death or adoption in the family. When this was so, and Laxmi Narain and Ram Sahai had nothing more than an interest expectant on the death of Smt. Sundari or what is known as a spes successions, it was not a vested interest during her lifetime and it could not be made the subject of a contract, surrender or disposal. It is true that, as Viscount Cave observed in Mst. Hardei vs. Bhagwan Singh (21), the courts of India have shown favour to family arrangements of disputes relating to succession, and these have been the subject-matter of decisions in some Privy Council cases, the more important being Lala Khunnilal vs. Kunwar Gobind Krishna Narain (22) and Kanhai Lal vs. Brij Lal (9 ). In Khunni Lal's case (22) the property belonged to Raja Ratan Singh who embraced Islam in 1845. His son Raja Daulat Singh however continued to live jointly with him. Daulat Singh died in 1851, and Ratan Singh a little later,but in the same year. Daulat Singh's widow Smt. Sen Kunwar died in 1857 and Ratan Singh's widow Smt. Raj Kunwar in 1858. On the death of Ratan Singh, the entire property was recorded in the Collector's register in the name of his widow Smt. Raj Kunwar. Disputes arose between the heirs of Daulat Singh and Smt. Raj Kunwar, and the Court of Wards took up the management of the entire estate. After the death of Smt. Raj Kunwar, the daughters of Daulat Singh and Khairati Lal, daughter's son of Ratan Singh, entered into a compromise in 1860. According to that compromise, the two daughters of Daulat Singh Smt. Chhattar Kunwar and Smt. Mewa Kunwar got 8-1/2 anna share out of the estate of Ratan Singh, while Khairati Lal got a 7-1/2 anna share. Khairati Lal transferred his share to the defendants. After the death of Smt. Chhattar Kunwar, Smt. Mewa Kunwar succeeded in taking possession of the entire 8-1/2 anna share which the sisters received in 1860. She died in 1899 and her share devolved on her sons. They raised a suit against the transferees of Khairati Lal on the ground that Ratan Singh had forfeited his share in the joint property by his conversion to Islam in 1845 and that as heirs of Daulat Singh they were entitled to the entire property and the terms of the compromise of 1860 were not binding on them. Their Lordships of the Judicial Committee held that it was a case in which the heirs of Daulat Singh had no existing enforceable right to the share of Ratan Singh, and the entire property was recorded in the name of his widow and that it was under these circumstances that the parties arrived at a mutual settlement of their claims. It was found that the true character of the transaction was a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others to the portion allotted to them. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves were held to have regarded the arrangement, and this is why it was upheld as binding, on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledged and defined that title. It is a family agreement of this nature which the law has recognised as valid and not an agreement for the division of a mere expectant interest in succession. In Kanhai Lal vs. Brijlal (9), a person alleging to be a reversioner entered into a compromise with the limited holder and got a benefit under it. It was held that he was one of those whose claims to the family property, or to a share in it, induced the widow of the last male holder, against her own interests and greatly to her own detriment, to alter her position by agreeing to the compromise and that the reversioner having obtained substantial benefit which he had all along enjoyed, was bound by the compromise and could not claim as a reversioner. It was therefore also a case of a different nature and was decided on a different basis. So far as Mst. Hardei's case (21) is concerned, in which Viscount Cave made the above mentioned observation, the facts were like this. One Nanakchand died in 1836, leaving his widow Smt. Pato and three daughters Smt. Durgadei, Smt. Mahadei and Smt. Hardei. In 1864 Smt. Pato executed a deed of conveyance by which after declaring that she was exclusively entitled to the property described in the schedule she covenanted that it should devolve on her three daughters. Mauza Gureta was one of those properties. In or about 1875 Smt Pato made a division of the whole of the property scheduled to the deed of 1864 among her three daughters and her grand sons then living who were the sons of Durgadei and Hardei. Gureta fell to Mahadeo. The daughters and grand sons entered into immediate possession and treated their property as absolute property. Pato died in 1876. The daughters made mortgages of their shares. In 1883 and 1884 Mahadei sold Gureta to Roshan Singh. Hardei knew of it but did not object. Mahadei died in 1912. Hardei then raised a suit in 1913 against the successors of Roshan Singh for recovery of possession of Gureta as the sole heir of Nanakchand. Their Lordships of the Privy Council held that at a time when Smt. Pato was claiming to be absolutely entitled to the property, and when her rights and those of her daughters were in doubt, the members of the family made the above mentioned arrangement and that Smt. Hardei, the plaintiff, was bound by her own agreement particularly because of the long period of 38 years which had elapsed since its implementation during which the parties to the arrangement had dealt with their respective properties as absolute owners. This case was also, therefore, decided on its peculiar facts and was on quite a different footing. It would thus appear that family arrangements which have been upheld and recognised are those in which there is an existing dispute regarding succession in praesenti and/or in which a reversioner receives a substantial benefit which he is found to have enjoyed so as to be bound by it and thereby disentitled to claim as a reversioner. There is therefore nothing to prevent disputes being settled with "reference" to the reversionary interests of the parties, the one right being the consideration for the other, but an agreement merely to divide or share any expectancy in future in the nature of a reversionary interest, has not been recognised or upheld as valid under the Hindu Law. It is that principle which seems to have been embodied in cl. (a) of sec. 6 of the Transfer of Property Act. ;