- (1.) THIS second appeal has been set down for hearing before me as the result of a review having been granted against the judgment and decree of a learned Single Judge of the former High Court of Matsya dated the 12th March, 1949 by a bench of this Court (on the abolition of that court and the integration of the Matsya Union with the State of Rajasthan) by which the plaintiffs' suit was, affirming the decrees of the two courts below, dismissed. The following pedigree table will be helpful in understanding the contentions between the parties: Sedu Ramsukh Godha Deva Khuba (died issueless) Rura Kana Bhinya Sewla Soonda (died issueless) Teja Mana (died issueless) Bharta (Plf) Chander (Plf) Mulia (Plf) Jeeta Indraj (Deft) Dhokal (died issueless) Gumna (died issueless) Sobla (died issueless) The plaintiffs are the sons of Rura, brother of Khuba, both being sons of Ramsukh, while the defendant Indraj is the great grandson of Godha, brother of Ramsukh.
(2.) THE dispute relates to certain agricultural lands specified in schedule Ex. P-1 situate in village Hajipur in the then State of Alwar. THE case of the plaintiffs is that the deceased Khuba was the biswedar of these lands, and that on his death, in 1937, the plaintiffs applied for the mutation of their names in the revenue records as they were the next of kin of the deceased Khuba, their uncle. THE defendant Indraj objected to this. By his order dated the 22nd May, 1939, the Revenue Minister of the former Alwar State ordered that the lands be mutated half and half in the names of the plaintiffs and the defendant. THE plaintiffs appealed from that decision but were unsuccessful. Consequently the plaintiffs brought the present suit on the 8th January, 1940, in the court of the Munsiff Bansur for a declaration that they were the next heirs to the deceased Khuba, and also for possession of the entire lands in dispute. THE defendant Indraj resisted the suit. His principal contention, and it is that with which only we are concerned in the present appeal, was that there had been a previous litigation between Khuba deceased on the one hand, and Bhinya son of Godha and Mana grandson of Godha and Rura brother of Khuba and Soonda a nephew of Khuba, on the other, regarding the lands in dispute, among other lands, and that dispute was decided by a compromise. THE dispute appears to have arisen as Khuba had somehow got himself entered as being in exclusive possession of the family lands in the revenue records while the other persons named above who were all members of the same family claimed that they were also entitled to be entered as co-sharers therein. THE compromise was that Khuba would remain in possession of the 2/3rds portion in the family lands and the remaining l/3rd would be entered half and half between the descendants of Godha and the other descendants of Ramsukh, and further that in the event of Khuba dying issueless, the branches of Ramsukh and Godha would divide the lands half and half. A decree was passed accordingly by the Mehkamamal Sadar on the 30th May, 1904. Consequently, it was prayed that the plaintiffs' suit was barred and deserved to be dismissed. THE main issue in the case was whether the plaintiffs were bound by the decision of the Mehkamamal Sadar Alwar dated the 30th May, 1904. THE trial court dismissed the suit by its judgment dated the 29th April, 1946. THE plaintiffs then went in appeal which was disposed of by the Additional District Judge, Alwar, by his judgment dated the 29th October, 1948. A second appeal was then preferred to the High Court of the then United State of Matsya, Alwar, which was also dismissed. THE plaintiffs then filed a review application against the aforesaid judgment and decree which was eventually granted by a bench of this court and this is how the appeal has come up before me for re-hearing. It may be stated at the outset that it seems to have been argued in the courts below, and that argument also found acceptance, that the plaintiffs' suit was barred by the rule of res judicata. The learned Additional District Judge, Alwar, concluded his judgment by saying "for the reasons stated above, it is held that the Revenue Court's decree dated 30. 5. 1904 was passed by a competent court and that operates as res judicata. The present a suit does not therefore lie". The learned single Judge of the Matsya High Court also expressed himself in the following words on this aspect of the case - ,'in this view of the 1904 decision it must operate as res judicata. . . " Now so far as this aspect of the matter goes, I consider it necessary to point out that, properly speaking, this is not a case which can be held to be barred by the rule of res judicate. Among the various requirements which are indispenable necessary to bring into play the rule of res judicata it is essential that the earlier suit should have been heard and finally decided. Now, it cannot be postulated of a decree based on a compromise that the suit out of which it arose has been heard and finally decided by a court within the meaning of sec. 11 C. P. C. , and the terms of sec. 11 cannot be held to be strictly applicable to such a decree. All the same, I have no hesitation in saying that a judgment by consent is an effective impediment in the way of a person seeking to pursue a certain litigation which was earlier concluded by his consent or by that of his predecessor in title and it raises an estoppel between the parties just as much as a judgment which results from the decision of a court after a matter has been heard and finally decided by it. It should be borne in mind, however, that in order to raise such an estoppel, the parties should have intended that the question at issue should have been finally settled between them by the consent decree and that the consent decree did actually settle that question. Sunderabai vs. Devaji (1) and Sailendra Narayan vs. State of Orrisa (2) and the English cases referred to therein. The precise question for answer, therefore, which arises in this case is whether the plaintiffs are debarred from raising the present dispute on account of any estoppel arising against them from the consent decree dated the 30th May, 1904. The main controversy raised by learned counsel for the plaintiffs appellants in this connection, and by reason whereof this consent decree is assailed, is that granting that the parties to the litigation culminating in the consent decree of 1904 had agreed that Khuba would be entitled to remain in exclusive enjoyment of the 2/3rds of the lands in dispute during his life-time, and that if he left any heirs of his own body surviving him, they would also continue to be entitled to the same share, the further arrangement, agreed to, that in the event of Khuba dying issueless his 2/3rds share would go half and half to the descendants of Ramsukh and Godha was a transfer of a mere chance of succession and was, therefore, void. Now before proceeding further. I may give an English translation of the operative part of the decree of the Mehakamamal Sadar of the then State of Alwar dated the 30th May, 1904: "let Amal Daramad be made as follows in accordance with the compromise arrived at between the parties. In the first place as to the khata measuring 37-1/2 Bighas Khuba shall be entered so as to be in exclusive milkiyat of a 2/3rd share therein, and as to the remaining 1/3rd, Rura and Kana shall be entered as holders of a one-half share and Bhinya and Mana in the line of Godha of the remaining one-half share; secondly, that these shares shall be entered as shamlat and undemarcated; and thirdly, if Khuba should marry anybody or take a woman in gharwas and he has children of his own body, then the parties will remain in enjoyment of the shares specified above; but should Khuba die without any issue of his own body, then the branches of Ramsukh and Godha shall take the entire lands in equal half shares. " The question which has been hotly debated at the bar of this Court is that this arrangement, in so far as it pertained to the devolution of the estate of Khuba on his death was a transfer of a spas successions or a mere chance of succession, and consequently it was void, both according to the principles of Hindu law as well as of sec. 6 of the Transfer of Property Act It was conceded before me that the Transfer of Property Act was not in force in the farmer State of Alwar either at the time when this decree was made or at the time when this suit was filed in January, 1940. But all the same it is contended that the principle of sec. 6 of the Transfer of Property Act which was in force in the rest of India should be hold to be applicable to this case, and, in any event, the transfer was hit by the principles of Hindu law, and reference is made in this connection to paragraph 30 of Mulla's Principles of Hindu Law, 11th Edition, which is in these terms: - "spes successionis.- The right of a person to succeed as heir on the death of a Hindu is a mere spes successions, that is, a bare chance of succession. It is not a vested interest; he cannot therefore make a valid transfer of it. For the some reason, any agreement entered into by him in respect of the inheritance cannot bind persons who actually inherit when the succession opens. " It is equally strenuously contended on the other hand that once the shares of Khuba and the ancestors of the parties to this suit had been defined, it would have been open to khuba to settle the devolution of his own estate in case he died issueless as best as he liked such as by making a will. And it was further contended that, in any case there was a depute among the descendants of the common ancestor Sedu in 1904 or prior thereto, and that the members of the family were parties to that dispute which related, among other things, to the lands in suit, and that that dispute had been resolved by a family, arrangement arrived at with the consent of the parties thereto, and as a result of the compromise the defendant Indraj's ancestor Bhinya had agreed to take a lesser share and so also Reva, the father of the present plaintiffs, and Khuba was allowed to retain a 'arger share until his death in 1937 or in other words, the compromise had been acted upon for all these years and therefore such an arrangement could not be characterized to be a transfer in the nature of a chance of succession and that the descendants of Rura who are the present plaintiffs must be held to be bound by that arrangement The question to decide in these circumstances is whether the compromise arrived at between the ancestors of the present parties on the one hand and Khuba on the other was a transfer in the nature of a spes successions, and, therefore, the descendants of Rura after the death of Khuba, claiming to succeed to him as his next of kin being his nephew can successfully assail it as being not binding on them. I have been referred by learned counsel for the appellants to a string of authorities in support of his contention, namely, Ananda Mohan vs. Gour Mohan (3), Jotilal Shah vs. Beni Madho (4 ). Ramgopal Dula Singh vs. Gurbax Singh (5) Venkatanarayana vs. Subbammal (6 ). Narayan Singh vs. Gaya Singh (7) and Harnath Kuar vs. Indar Bahadur (8 ). These, however, are mostly cases of reversioners of a female heir entering into certain agreements on the expectancy of their succeeding to the last male-holder's estate and the principle which has been expounded and which indeed must be taken to be indisputable at this distance of time is that the reversioner have no right whatsoever. In presenti and that all they have is a chance to succeed to the last male-holder on the death of the female heir depending on the reversioner's chance of surviving the widow and, therefore, any agreement arrived at by the reversioners in such cases with respect to their interest in the reversion amounts to dealing in a mere spes successions which cannot be sold, mortgaged, assigned or relinquished and, therefore, any transfer of such interest in the reversion is a nullity and has no effect in law. The law as to the inalienability of a chance like this is the same under the Hindu law and seems to me to be contained in paragraph 30 of the Principles of Hindu Law by Mulla referred to above. To my mind, these authorities have really no application to the present case because we are not here concerned with any such reversion. As to Jotilal Shah vs. Beni Madho (4), the decision also seems to have taken note of the plea of a family arrangement but the case is distinguishable as the learned Judges held that the agreement there was only between two members of the family, and that there were a large number of other contesting members in the family who were not parties to it. It was also held that the arrangement had been made not for the purpose of setting a family dispute but rather to facilitate the fighting out of a family dispute by some members who are now admittedly entitled to the property, against these who were at that time making claims to shares in that property". This case is, therefore, also distinguishable and does not afford any real assistance in the decision of the dispute before me. Learned counsel next placed very strong reliance on Bahadur Singh vs. Mohar Singh (g ). The facts in this case were as follows. The plaintiffs filed a suit for recovery of some jungle land which was the property of one M on the ground that they were his next of kin M left a widow P surviving him. She was recognised as the proprietor of the land at the settlement of 1847, and she died in 1892. In the meantime P alienated the suit property to the defendants. On P's death in 1892, the plaintiffs claimed the land on the ground that she had only a Hindu widow's estate and that the alienation made by her was invalid. One of the questions was whether the plaintiffs had proved their relationship with the deceased M. The Subordinate Judge decreed the plaintiffs' suit which was, however, dismissed by the High Court on appeal. On a further appeal to the Privy Council, their Lordships held that the plaintiffs' title was established. It was further argued on behalf of the respondents that the appellants were estopped by what had taken place in 1847 from disputing P's right to alienate the property. Now what P had stated in 1847 to the Settlement Officer in reply to a question as to who would be her heir on her death was that if the plaintiffs' ancestors paid her past and present debts on account of the revenue and they would be obedient to her, they would be owners of her estate after her death; but so long as she was alive she had every sort of power with respect to her estate, whereupon the estate was settled with her and the said ancestors of the plaintiffs accepted her condition. It was in these circumstances that the argument last-mentioned was raised before the Privy Council that appellants were estopped from disputing P's right to alienate the property. This argument was repelled by their Lordships by saying that it failed both in fact and in law. It was further observed that there was no evidence of any representation on which to found an estoppel, and, that even assuming that the arrangement made by the Settlement Officer amounted to a contract between the then claimants and P, such a contract was not binding on the appellants, as, according to Indian law, the claimants of 1847 were but expectant heirs with a spes succession's, and that the appellants claimed in their own rights as heirs of M when the succession opened and that it would be a novel proposition to hold that a person so claiming is bound by a contract made by the very person through whom he traces his descent. In this view of the matter, the appeal was allowed and the decree of the Subordinate Judge was restored. I have carefully considered the implications of this case, and the point I should like to emphasize is that the claimants in 1847 were reversioners of P and all that their Lordships seem to me to have laid down is that whatever these claimants said in 1847 could not bind their sons because they were only expectant heir's at that time and had no right to the estate of the deceased M. In this view of the matter, it seems to me that the decision of their Lordships of the privy Council in this case does not carry the matter any further. As I look at the whole matter, the dispute between the parties which culminated in the consent decree of 1904 was not a dispute between persons who were expectant heirs or who had a mere chance of succession. Khuba deceased was actually in possession of the entire family lands. Rura, another son of Ramsukh and the father of the plaintiffs and Soonda his nephew and Godha's descendant Bhinya, great grand father of the present defendant and Mana, Bhinya's nephew, were parties to that dispute. The contest was with respect to the lands among certain other family lands Khuba had been recorded in the revenue papers as the sole owner and possessor of the lands, and the other persons named above, who were all, along with Khuba, descended from the common ancestor Sedu, disputed the right of Khuba on the ground that they were also equally entitled to be entered as co-sharers therein, and to joint possession. This dispute was settled by the compromise, the terms of which have already been specified above. It does seem to me that here was a family dispute to which all the living descendants of Sedu were parties. Khuba, according to the disputants, had only l/6th share in the entire family lands in dispute then. Rura and Soonda laid claim to an equal share, namely, 1/6th each; and Bhinya and Mana to an equal half (with that of Ramsukh's branch) that is, l/4th each in the half share of Godha. The parties, however, compromised this dispute, and it was decided that Khuba would have 2/3rds share in the disputed lands and if he left behind any children of his own, they would inherit the same, and as to the remaining 1/3rd the descendants of the branches of Ramsukh and Godha were to have an equal half, and it was further agreed that should Khuba die without any heir of his body, then Khuba's share would go in equal shares to the branches of Ramsukh and Godha, The father of the plaintiffs Rura who was the rival claimant of Khuba, and Bhinya. the great grand father of Indraj, were parties to this compromise. It was at the best a doubtful matter as to what were the respective rights of the parties with regard to the lands in dispute, and all the members of the family put their heads together and came forward with a solution which was later made into a decree of the court and there could not be a better proof of such a compromise having been arrived at than the decree itself. As to such a case like the present, it can hardly be said, in my view, in the first place, that there was any transfer of lands from one member of the family to another, nor can it be rightly said that when Khuba and Rura and Bhinya as also the other descendants of Sedu who were alive at that time gave their consent to this compromise, they were dealing in any spes successionis. These persons between themselves were fully entitled to distribute the family lands during their life as best as they chose to ensure family peace and amity and to such an arrangement, learned counsel for the plaintiffs appellants has himself conceded that there could be no objection. An i so far as I consider, there could be no real objection either if these persons again in the interests of family peace and amity settled the course of future devolution of the suit property, and in doing so, it can hardly be said that they were merely dealing with a chance of succession. What was said was that in case Khuba died issueless, the branches of Ramsukh and Godha would take his estate half and half. It might very well have been that but for this arrangement Godha's son Bhinya might not have agreed to allow Khuba to retain 2/3rds and himself be content with only l/12th (and this applies to Mana also), which after the death of Mana, issueless, swelled to l/6th It cannot also be forgotten that the plaintiffs' father Rura had accepted this arrangement throughout his life and it had been acted upon for 33 years after the compromise had been arrived at in 1904 until Khuba died in 1937. In these circumstances it seems to me to be little short of fraud on the part of Rura's sons now to turn round and say that they are entitled to the entire 2/3rds estate of Khuba in addition to the 1/6 which they already possess, and speaking for myself, I have no hesitation in saying that no court should countenance such a state of affairs. I consider that there is abundant authority for the view that compromises and family arrangements do not operate as transfers of any reversionary interest, nor, if I may say so, can they be condemned as being founded on a mere chance of succession. They are really based on the assumption that there existed an antecedent title of some kind in all the parties thereto which was the subject-matter of dispute, and what the agreement achieves is to defined that title with the mutual consent to the parties concerned. It also seems to me that a family arrangement may justly be concluded with an eye to avoid future disputes between the parties and may, to achieve this objective, settle the immediate devolution of the family in one way and fix5 it up for the future in a manner somewhat differently from that determined at the time, depending upon certain contingencies arising in future. Lord Halsbury in his Laws of England (Vol. 17 third Edition p. 216) defines a family arrangement as follows: - "a family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful claims or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. " In the very next paragraph, it has been further laid down that the court when deciding the rights of parties under family arrangement or when deciding claims to upset such arrangements should consider what in the broadest view of the matter is most for the interest of the families and have regard to considerations which would not be taken into account otherwise, that is, if the transaction were between persons not belonging to the same family. It has even been held that for a family arrangement to be good it was not always necessary that there should be a family dispute. See Williams vs. Williams (10 ). But it is unnecessary to pursue this point further because in the present case there was a bonafide dispute between members of the same family.- grandsons or a great grandson of a common ancestor, - and the arrangement arrived at was certainly in the nature of a family settlement, the object being to settle the respective rights of the members of the family then alive and of their branches as to the land in dispute. There seems to me to be no question of the "transfer" of a mere chance of succession in a case like the present. I am also unable to accept that the arrangement arrived at between the parties was, to put it bluntly, grossly improper or unconscionable. Nor is there any allegation, much less proof, that there was any imposition on the one side or victimisatiom on the other. Khubas for certain reasons which the disputants knew best, was allowed to remain in enjoyment of the lands in dispute to the extent of a 2/3rds share, his brother Rura and nephew Soonda jointly taking a half of the remaining one third and Godha's descendants taking the other half thereof, and what was further decided with the mutual consent of all the parties concerned was that on Khuba dying without any heir of his body, his entire estate would be divided half between the branches of Ramsukh and Godha. It was conceded before me that Rura himself could not have objected to this compromise or family settlement. That seems to me to be undoubtedly so. The contention is however raised that the plaintiffs were not claiming through Rura but a the next their of Khuba, and, therefore, whatever Rura did would not bind the plaintiffs by estoppel. Now, the short answer to that, in my opinion, is that the present claimants are bound by what Khuba himself agreed to in his life-time, and they cannot place their rights higher than that of Khuba himself with respect to his estate. Reference may be made at this place to Kantichandra Mukerji vs. Al-i-Nab (11 ). The facts in this case were that one Mst. S. died and D was an executor under her will. He obtained a probate of the will and executed an administration bond with certain other persons as sureties for the due administration of the estate of S. The plaintiff who was the step-son of S filed a suit against D's legal representatives (D having died in the meantime) and against the sureties on the allegation that D had mis-appropriated the assets of S. The District Judge decreed the suit against D's widow but dismissed it against the brothers and nephew of D. The plaintiff appealed. The contention on the side of the plaintiff appellant was that there had been compromise which had been made a decree of court in the course of a litigation between D and his brothers that in the event of the death of any of the brothers without male issue, his property would devolve on the surviving brothers in equal shares and that as D had died without male issue, his nephew and brothers were his heirs and legal representatives, and that a decree should have been passed against them. As against this it was contended on the side of the defendants that the provision in the compromise was repugnant to the Hindu law of succession and that the brothers and nephew of D had not been rightly sued as they did not represent D's estate. It was further contended that the provision in the compromise purported to be a transfer of a mere expectancy and was, therefore, bad, as being in contravention of sec. 6 (a) of the Transfer of Propetry Act. This plea was repelled. The learned Judges held that D was not dealing with an expectant interest in property and he and the other parties to the agreement of compromise were dealing with the property which at the time belonged to them, and it was further held that a provision in a family settlement whereby the brothers agreed that upon the death of any one of them without male issue, the share to which he would be entitled would go to the other brothers, was neither in contravention of Hindu Law nor obnoxious to the provisions of the Transfer of Property Act. Reliance was placed in this case on a decision of the Calcutta High Court in Ram Nirunjun Singh vs. Prayag Singh (12 ). In that case there was a dispute between brothers as regards the property of their father. They entered into a compromise whereby it was agreed that the estate of their father should be divided equally between the four brothers with the further provision that if any of the brothers should die without any issue, then the surviving brothers should succeed to his estate in equal shares, none of them having any claim against the other on the ground of common-sality or joint tenancy. Two of the brothers then died without issue and a dispute arose between the surviving brothers as to the estate of the deceased. The validity of the agreement was challenged on the ground that it amounted to the transfer of a mere chance of succession and was therefore not enforceable at law. The learned Judges refused to give effect to this plea and held that there was nothing in the Hindu Law to make such an agreement void. I am in respectful agreement with this view. Reference may also be made in support of this view to the Full Bench decision of the Allahabad High Court in Uma Shanker vs. Ramcharan (13) and Rai Kumar Singh vs. Abhai Kumar Singh (14) which were not cited at the bar of this Court.
(3.) THERE is yet another angle from which one may look at the present case. Suppose Khuba bad in his life-time promised, in lieu of his receiving 2/3rds share of the family lands, his brother Rura or his first cousin Bhinya that on the former's (Khuba's) death without any issue, they would receive his estate half and half and that in the meantime they should be content with a lesser share. I have no doubt that such a promise made by Khuba would certainly be founded on good consideration, and I also see no valid reason why such an agreement should be held to be void as being against any rule of Hindu Law. The view, therefore, that commends itself to me as essentially just and fair is that where all the members of a family have by a family arrangement or settlement defined their rights with respect to their family property and divided and enjoyed it accordingly and they have also fixed upon a certain distribution of their lands in future in the interests of family peace and amity and security and such a family arrangement is not vitiated by fraud, or undue influence or any similar imposition or victimisation then such a family settlement dealing as it does with the family property in existence at the time of the settlement of the family quarrel should not and need not be struck down as bad as being in violation of the rule against the transfer of a mere spes succession's under the Transfer of Property Act or under the Hindu Law. I hold accordingly. In this view of the matter, I conclude that there was nothing in the agreement of 1904 to make it invalid either by the principles of Hindu Law or the principle contained in sec. 6 of the Transfer of Property Act. I further hold that in any case the agreement of 1904 embodied in the decree of the Mehakamamal Sadar of the former State of Alwar as set out in the foregoing part of this judgment was entered into with no other object than to put a stop to the family dispute relating to the family land between Khuba on the one hand and Rura the father of the plaintiffs appellants and Soonda, nephew of Khuba and Rura and Bhinya the great grand father of the defendant respondent Indraj on the other, and it seems to me obvious enough that it was on the faith of a vital term of this agreement namely that on Khuba's dying issueless the branches of Ramsukh and Godha would be entitled to an equal half share of the family lands that the aforesaid ancestor of Indraj remained content with a much smaller share during Khuba's life-time. Khuba died in 1937 and there is no denying the fact that the shares alloted to the respective parties by this agreement were so enjoyed for as long a period as 33 years and thus the agreement was clearly acted upon, to the obvious detriment of the branch to which respondent Indraj belongs. Sec. 115 of the Evidence Act is clearly attracted to a situation like this, and in my opinion it Would have clearly estopped Khuba and the other parties to the agreement from going back on the agreement in question. It also follows from the very terms of the section that the plaintiffs appellants who are the sons of Rura (who was a party to the agreement of 1904) or who from another point of view are the heirs of Khuba (who was also a party to the said agreement) should not be a allowed to repudiate the same, it having been acted upon for such a long time to the obvious disadvantage of the respondent Indraj and his ancestors and the plaintiffs appellants are therefore likewise estopped from challenging the efficacy of this agreement. I, therefore, hold that the plaintiffs appellant must be held down to this agreement and cannot be allowed to throw it over-board in the circumstances of the case. The result is that this appeal fail and I hereby dismiss it with costs to the contesting respondent.;