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PETITIONER: KRISHNA BIHARILAL

       Vs.

RESPONDENT: GULABCHAND AM ORS.

DATE OF JUDGMENT16/03/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1041            1971 SCR   27  1971 SCC  (1) 837  CITATOR INFO :  RF         1972 SC2069  (21,26)  F          1976 SC 794  (16)  R          1976 SC 807  (17,41)  RF         1984 SC 664  (5)

ACT: Hindu  Law--Widow  entitled  to  life  estate-Entering  into compromise  with reversioners giving up rights over  portion of  property  in  return for  recognition  of  her  absolute ownership  of  part of property--Reversioners  are  estopped from  challenging alienations by widow of properties  recog- nised  as  absolutely hers in  compromise--’Malik  Mustakal’ means absolute estate--Document must be read to give  effect to  plain  and natural meaning to  words  employed--Plea  of estoppel  when  may be considered  though  not  specifically raised in pleadings.

HEADNOTE: B  filed  a suit for the possession  of  ancestral  property against the descendants of his father’s brother and  sister. During  the pendency of the suit B died and his widow P  was impleaded   as  his  legal  representative.   Some  of   the defendants  also died; those who left legal  representatives were substituted by them.  On June 7.1941 the parties to the suit  compromised their disputes.  Before  compromising  the suit the parties had obtained the leave of the court as  the minor  defendants  had  joined the  compromise.   Under  the compromise  a portion of the suit properties was given to  P and the remaining portion to the defendants in that suit.  P alienated the properties given to her under three  different sale  deeds.  The appellant was the alienee under all  these sale   deeds.   The  alienations  were  challenged  by   the defendants  in  the earlier suit and  their  descendants  in three  suits  wherein  declarations  were  sought  that  the aforesaid alienations by P were not valid and binding on the plaintiffs  who  were the presumptive  reversioners  to  the estate  of  B. During the pendency of the suits P  died  and thereafter the suits were contested only by the appellant as the  alienee.  The trial. court dismissed two of  the  suits holding  that in view of the compromise in the earlier  suit the  parties were estopped from challenging the validity  of the sale deeds as under that compromise the estate given  to

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P  was an absolute one.  After various stages of  litigation the  Division  Bench  of  the  High  Court  held  that   the compromise of 1941 was illegal and as such could not be used to  non-suit  the  plaintiffs.   It  also,  held  that   the compromise did not amount to a family arrangement. HELD:(i)  The  ordinary  rule  of  construction  of   a document is to give effect to the normal and natural meaning of. the words employed in the document.  The compromise deed specifically said that the properties given to P were to  be enjoyed  by her as ’Malik Mustakal’.  These words have  been interpreted  to mean an absolute estate.  The  circumstances in  which  the compromise was entered into as  well  as  the language  used  in  the deed did not in  any  manner  go  to indicate that the estate given to P was anything other  than an absolute estate. [31E-F] Dhyan Singh and Anr. v. Jugal Kishore & Anr., [1952]  S.C.R. 478 and Bishunath Prasad Singh v. Chandika Prasad Kumar,  60 I.A. 56, relied on. (ii)In holding that the compromise in question was  illegal the  Division Bench overlooked the fact that this was not  a compromise  entered  into  with third  parties.   It  was  a compromise  entered  into  with  presumptive   reversioners. Further,  since at no stage had the plaintiffs pleaded  that the compromise was illegal, the High Court was not justified in going into the validity of the compromise. [31H-32B]                              28 (iii) Even if the compromise was illegal the parties to  the compromise  were  estopped  from  challenging  the  impugned alienation. It  is  well settled that a Hindu widow cannot  enlarge  her estate  by entering into a compromise with third parties  to the  prejudice of the ultimate reversioners.  But  the  same will  not  be true if the compromise is  entered  into  with persons  who  ultimately  become the  reversioners.   P  was entitled  to  enjoy the entire properties  included  in  the earlier suit during her life time; but under the  compromise a fraction of those properties was given to her  absolutely. She  gave  up  her rights in a substantial  portion  of  the properties on the representation of the, defendants that she could  take  a portion of the  suit  properties  absolutely. This was a representation of fact and not law. [32B-33A]         T.V.R. Subbu Chetty’s Family Charities v. M. Raghava Mudilyarand ors., [1961] 3 S.C.R. 624, relied on. When  the nearest presumptive reversioners who were  parties to  the compromise were estopped from challenging  it,  they could  not advance their case by impleading their  sons  who could only claim through them, as co-plaintiffs. [33E-F] The  issue  whether the plaintiffs 1 & 2 were bound  by  the terms  of  the  compromise was broad  enough  to  cover  the defendant’s  plea  of  estoppel  even  though  it  was   not specifically  raised in the pleadings but considered by  all the courts. [34A] (iv)The  nearest  reversioners  who  were  parties  to  the compromise were the grand-children of B’s aunt.  The parties to, the earlier suit were near relations.  The dispute,  was in  respect  of property originally owned  by  their  common ancestor.  To consider a settlement as a family  arrangement it  is  not  necessary that the parties  to  the  compromise should  all belong to one family.  The courts lean  strongly in favour of family arrangements to bring about harmony in a family  and do justice to its various members and  avoid  in anticipation  future  disputes  which might ruin  them  all. [34B-E] Ram  Charan  Das  v. Girjanandini Devi and  Ors.,  [1965]  3 S.C.R. 841 and Sahu Madho Das and Ors. v. Pandit Mukand  Ram

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and Anr., relied on. [The  suits being held to be not maintainable the Court  did not  consider the question whether the impugned  alienations were effected for valid necessity.]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 74 and 75 of 1967. Appeals by special leave from the judgment and decree  dated May 3, 1966 of the Madhya Pradesh High Court in L.P.A.  Nos. 3 and 4 of 1964. S.V. Gupte, Rameshwar Nath, Rajendar Nath and Manik Chand Jain, for the appellants (in both the appeals). S.T Desai, Motilal Gupta, B. M. Agarwal, P. N. Tiwari, J. B. Dadachanji,  O.  C.  Mathur and  Ravinder  Narain,  for  the respondents (in both the appeals).                              29 The Judgment of the Court was delivered by Hegde  J.-In these appeals by special leave identical  ques- tions  of  fact  and law arise for decision.   It  would  be convenient to set out the material facts before  formulating the questions arising for decision.  In the State of Gwalior there was a firm known as Chhedilal Chaturbhuj.   Chhedilal, the  owner of the firm had two sons and one  daughter.   The genealogy of the family of Chhedilal is as follows:                           Chhedilal          |--------------------|-------------|          |                    |             |      Baldy Prasad        Chhaturbhuj    Parvati          |                    |      Bulak chand         I    Imarried to           Jwalaprasad    Suta Rajabett Manorthilal      Mst. Pattobai       (daughter)      (widow)        I      in 1953.       Kanialal      Karnimal  Hiralal@  Raggamal  Pannalal      alias Kannimal Harijit   II                Ganeshilal Lakshmichand                     Sarswatibai                     (widow)      Balktshan Krishanlal Phoolchand Poonamchand      (minor)   (Res. 7)       (Res. 9)      (Res. 8)      Gulabland Jagdish Chandra     Ma   Ka’ a      @Rambabu  (Res. 2)  (minor)   (daughter)      (Res . 1)      (Res. 3)Minor, Res. 4 After  the  death  of  Chhedilal, it  appears  the  firm  in question came into the possession of some of the children of Parvati.  In 1926, Bulakichand, grandson of Chhedilal  filed a  suit  against Jwalaprasad (his first  cousin),  Karnimal, Raggamal  and  Pannalal;  seeking possession  of  the  firm. Therein he appears to have alleged that Jwalaprasad who  had a half share in the suit properties had been colluding  with the other defendants.  Bulakichand died during the pendency of the suit.  Thereafter his widow Pattobai was impleaded as his  legal representative.  During the pendency of the  suit Jwalaprasad,  Karnimal,  Raggamal and  Pannalal  also  died. Neither  Jwalaprasad  nor  Karnimal  left  any   successors. Raggamal was succeeded by his son Ganeshilal and Pannalal by his son Lakshmichand.  They were duly impleaded in the suit. On  June 7, 1941, the parties to the suit compromised  their disputes.  It may be noted that to that compromise the minor sons  of  Lakshmichand as well as of  Ganeshilal  were  also

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parties.                              30 Before  compromising the suit the parties had  obtained  the leave  of the court as the minor defendants had  joined  the compromise.   Under  the compromise, a portion of  the  suit properties  was given to Pattobai and the remaining  portion to  the  defendants in that suit.   Pattobai  alienated  the properties  given to her under, three different  sale  deeds i.e.  one  on July 15, 1941 and the other two  on  July  24, 1941.  The first sale deed was for a sum of Rs. 1,000/-  and the other two for Rs. 9,000/- and Rs. 20,500/- respectively. The appellant is the alienee under all these sale deeds.  In 1953, Lakshmichand and his sons and Ganeshilal and his  sons instituted   three  suits  seeking  declarations  that   the alienations  referred  to above are not  valid  and  binding against them, the presumptive reversioners to the estate  of Bulakichand.   One  of those suits is still  pending  trial. These  appeals arise from the other two suits.   During  the pendency of those suits Pattobai died.  Thereafter the suits were  contested only by the appellant, the alienee (he  will be  hereinafter  referred to as the defendant).   The  trial court  dismissed the two suits holding that in view. of  the compromise  in  the earlier suit, the parties  are  estopped from  challenging  the validity of the sale deeds  as  under that compromise the estate given to Pattobai is an  absolute one.   In  appeal the first appellate  court  confirmed  the Judgment  of  the  trial court on the  ground  that  as  the plaintiffs had not amended the plaint seeking possession  of the  suit properties after the death of Pattobai, the  suits were  not maintainable.  On further appeals being  taken  by the plaintiffs, the High Court set aside the first appellate court’s judgment.  ’It came to the conclusion that the first appellate  court  should have taken into  consideration  the change in the circumstances that had taken place pending the trial of the suits and moulded the relief according-to  law. It,  accordingly remanded the cases to the  first  appellate court for disposal of the same on merits.  After remand  the first  appellate  court again affirmed the decision  of  the trial  court  on two grounds viz. (1)  that  the  plaintiffs were,estopped from claiming any right in the suit properties as an absolute estate had been given to Pattobai in  respect of those properties and (2) that under any circumstance  the compromise  in  question should be considered  as  a  family arrangement and as such is not liable to be reopened. This decision  was affirmed by a single judge- of the High  Court in  second  appeal.  Thereafter the plaintiffs took  up  the matter  in appeal to the Letters Patent Bench.  The  Letters Patent Bench reversed the judgment of the courts below.   It held that the compromise entered into in 1941 was an illegal compromise  and as such the same cannot be used to  non-suit the  plaintiffs.  It also disagreed with the  conclusion  of the  learned  single  judge  that  the  compromise  recorded amounted to a family settlement.  These appeals are directed against that judgment. 31 The  first question that falls for consideration is  whether on  a true construction of the compromise decree it  can  be held  that  Pattobai  had been given an  absolute  estate  ? According  to the plaintiffs Pattobai having been  impleaded to the suit as a legal representative of her husband, in law she could not take an absolute estate; she could only have a widow’s  estate and therefore in construing  the  compromise decree, we must bear in mind the principles of Hindu Law and if  we  do  so, the only possible  conclusion  is  that  the intention of the parties was only to give her a life estate.

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On the other hand it is contended on behalf of the defendant that  under  law  Pattobai was entitled  to  enjoy  all  the properties included in the plaint in the earlier suit during her life time but she agreed to give up her right in bulk of the  properties in consideration of her getting an  absolute estate in a small portion of the properties involved in that suit.   It  was  further  urged  on  his  behalf  that   the compromise deed specifically says that the properties  given to  Pattobai  are to be enjoyed by her as  "Malik  Mustikal" which  means absolutely and hence there is no basis for  the contention that she took a Widow’s estate. The  ordinary rule of construction of a document is to  give effect  to  the  normal and natural  meaning  of  the  words employed in the document.  The compromise deed  specifically says  that  the  properties given to  Pattobai  were  to  be enjoyed  by  her as "Malik Mustakil".  The  meaning  of  the expression  "Malik Mustakil" an urdu word, has come  up  for consideration  before  this Court in some cases.   In  Dhyan Singh  and anr. v. Jugal Kishore & anr(1) this  Court  ruled that  the,  words "Malik Mustakil" were  strong,  clear  and unambiguous  and if those words are not qualified  by  other words and circumstances appearing in the same document,  the courts  must hold that the estate given is an absolute  one. A  similar  view  was taken by  the  Judicial  Committee  in Bishunath  Prasad Singh v. Chandika Prasad Kumar  (2).   The circumstances under which the compromise was entered into as well  as the language used in the deed do not in any  manner go  to  indicate  that  the estate  given  to  Pattobai  was anything other than an absolute estate. The  Letters  Patent Bench of the High Court held  that  the compromise entered into was illegal compromise.  It came  to that  conclusion  on  the basis that a  Hindu  widow  cannot enlarge  her own rights by entering into a compromise  in  a suit.  But the High Court overlooked the fact that this  was not a compromise entered into with third parties.  It was  a compromise entered into with the (1) [1952] S. C. R. 478. (2) 60 I. A. 56. 32‘ presumptive   reversioners.    Further  at  no   stage   the plaintiffs  had pleaded that the compromise entered into  in 1941 was an illegal compromise.  The plaintiffs took no such plea  in  the plaint.  There was no issue  relating  to  the validity ’of the compromise.  Hence, the High Court was  not justified  in  going into the validity  of  the  compromise. Further  even  if  the compromise was an  invalid  one,  the parties to the compromise are estopped from challenging  the impugned alienations-see Dhyan Singh’s case(1). This takes us to the question of estoppel.  As seen earlier, the  trial court, the first appellate court as well  as  the learned  single  judge of the High Court  have  concurrently come to the conclusion that the plaintiffs are estopped from challenging  the  impugned  alienations.   But  the  Letters Patent  Bench  took a different view.   Its  conclusion,  as mentioned earlier, proceeded on the basis that a Hindu widow cannot enlarge her own estate by entering into a  compromise with, others.  It is well settled that a Hindu widow  cannot enlarge her estate by entering into a compromise with  third parties to ’the prejudice to the ultimate reversioners.  But the same will not be true if the compromise is entered  into with persons who ultimately become the reversioners.  It was urged  on  behalf of the respondents that Pattobai  was  im- pleaded  in the earlier suit only as a legal  representative of her deceased husband, therefore she could only  represent his  estate  and not carve out an estate for  herself.   But

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this argument overlooks the fact that according to  Pattobai she was entitled to enjoy the entire properties included  in the  earlier  suit  during  her life  time;  but  under  the compromise a fraction of those properties were given to  her absolutely;  that being so the plaintiffs are estopped  from backing  out of that compromise.  It was urged on behalf  of the  plaintiffs that the representation made by  the  defen- dants  in  the earlier suit is at best a  representation  as regards  the true legal position and such  a  representation cannot  estop  them; before there can be  an  estoppel,  the representation  must be about some fact, the  opposite  side must  rely  on  that representation  and  must  suffer  some detriment by acting on the basis of that representation.  It was  urged  on  their  behalf that in  this  case  the  only representation that the plaintiffs are said to have made  in that  Pattobai  had an absolute estate in a portion  of  the suit properties,, this cannot be said to be a representation of  a fact and therefore the same cannot form any basis  for invoking the rule of estoppel.  We are unable to accept this contention.   From  the facts set out earlier, it  is  clear that Bulakichand claimed the entire estate for himself after the  death of Jwalapmsad.  If the contention of  Bulakichand is correct, as we must assume for the purpose of this  case, then  Pattobai would have been entitled to enjoy the  entire properties during her life time.  But she’ gave up her right in  a  substantial  portion  of  those  properties  on   the representation by (1)  [1952] S. C. R. 478.                              33 the  defendants  that  she can take a portion  of  the  suit properties  absolutely.  This is a representation of a  fact and  not of law.  The representation is that the  defendants were  willing to confer on Pattobai an absolute right  in  a portion  of the suit properties if she gave up her right  in the   remaining   properties.   Pattobai  relied   on   that representation  and  gave  up  her claim  in  respect  of  a substantial  portion  of  the  properties  included  in  the earlier    suit.    Hence   the   plaintiffs    particularly Lakshmichand and Ganeshilal who alone were the  reversioners to  the  estate of Bulakichand on the date of the  death  of Pattobai,  are  estopped  from  contending  that  they   are entitled  to  succeed to the properties given  to  Pattobai. The other plaintiffs have no independent right of their  own in  the  properties with which we are concerned.   In  Dhyan Singh’s case(1) this Court ruled that even if an award  made is ’invalid, the persons who were parties to that award  are estopped from challenging the validity of the award or  from going behind the award in a subsequent litigation.  In T. V. R.  Subbu Chetty’s Family Charities v. M.  Raghava  Mudaliar and  ors.,(2) this Court ruled that if a person having  full knowledge  of  his rights as a possible  reversioner  enters into  a transaction which settles his claim as well  as  the claim  of  the opponent at the relevant time, he  cannot  be permitted  to  go back on that  arrangement  when  reversion actually opens.  At the time of the compromise  Lakshmichand and  Ganeshilal were the nearest  presumptive  reversioners. They  must be deemed to have known their rights  under  law. Under the compromise they purported to give a portion of the suit   properties  absolutely  to  Pattobai,  evidently   in consideration of her giving up, her claim in respect of  the other  properties.  They cannot be now permitted  to  resile from the compromise and claim a right inconsistent With  the one  embodied in the compromise.  They cannot advance  their case by impleading their sons as co-plaintiffs.  Their  sons can only claim through them.

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For the first time in this Court it was urged that the  plea of  estoppel was not available to the defendant as  no  such plea  had been taken in the pleadings.  It is true  that  no specific  plea  of estoppel had been taken  in  the  written statement  filed  by the defendant.  But be  had  definitely stated  in  paragraph 14 of his written statement  that  the plaintiffs are bound by the compromise and have no right  to deny the right of Pattobai over the whole of the  properties sold to him.  One of the issue raised in the suit (Issue No. 4) is               the  plaintiffs  Nos.  1 and 2  bound  by  the               terms  of compromise filed in  Civil  Original               Suit  No. 3 of S. Y. 1991 of the  High  Court?               If so, what is its effect?" (1)  [1952] S. C. R. 478. (2) [1961] 3 S. C. R. 624. 34 This  issue is broad enough to cover the plea  of  estoppel. The  plea of estoppel had been urged and considered  by  all the courts without any objection from the plaintiffs.   They cannot  be now permitted to contend that the  defendant  had not taken any specific plea of estoppel. The  next question that we have to consider is  whether  the compromise in question can be considered as a settlement  of family  disputes.   It may be noted  that  Lakshmichand  and Ganeshilal who alongwith Pattobai were the principal parties to the compromise were the grand-children of Parvati who was the  aunt of Bulakichand.  The parties to the  earlier  suit were near relations.  The dispute between the parties was in respect of a certain property which was originally owned  by their  common  ancestor  namely Chhedilal.   To  consider  a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to     one family.   As  observed  by  this Court  in  Ram  Charan  Das v.Girjanandini  Devi  and ors.(1) the word "family"  in  the context of     a family arrangement is not to be  understood in a narrow sense of     being  a group of persons  who  are recognised in law as having a right of succession or  having a  claim  to  a share in the property in  dispute.   If  the dispute which is settled is one between near relations  then the  settlement  of such a dispute can be  considered  as  a family arrangement-see Ramcharan Das’s case(1) The   courts   lean  strongly  in  favour  of   the   family arrangements  to  bring  about harmony in a  family  and  do justice  to  its various members and avoid  in  anticipation future disputes which might ruin them all-see Sahu Madho Das and ors. v. Pandit Mukanel Ram and anr.(2) For  the reasons mentioned above we are of the opinion  that in  view of the compromise entered into between the  parties in  1941, the suits from which these appeals arise  are  not maintainable.  In that view, it is not necessary to go  into the question whether the alienations were effected for valid necessity, a question that has not been gone into finally. In  the result these appeals are allowed and the suits  from which these appeals arise dismissed with costs throughout. G.C.                                                 Appeals allowed. (1)  [1965] 3 S. C. R. 841 at P. 850 & 851. (2) 35