24 April 1952
Supreme Court
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MUSAMMAT PHOOL KUER Vs MUSAMMAT PEM KUER AND ANOTHER.PANDIT MADAN MOHANv.MUSAMMAT

Case number: Appeal (civil) 29-30 of 1951


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PETITIONER: MUSAMMAT PHOOL KUER

       Vs.

RESPONDENT: MUSAMMAT PEM KUER AND ANOTHER.PANDIT MADAN MOHANv.MUSAMMAT P

DATE OF JUDGMENT: 24/04/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN

CITATION:  1952 AIR  207            1952 SCR  793  CITATOR INFO :  R          1960 SC1118  (17)

ACT:     Hindu   law--Widow--Surrender to  next reversioner   and stranger--Validity--Compromise  by  widow--When  binding  on reversioner. (1) (19I8) 27 C.L.J. 532. 794

HEADNOTE:     A  relinquishment  by  a Hindu widow of  her  estate  in favour  of  the  next reversioner and a  stranger  in  equal moieties is not a valid surrender under Hindu law.  A  valid surrender  cannot  be made in favour of anybody  except  the next heir of the husband.     Mummareddi   Nagireddi v.  Pitti Durairaja Naidu  [1951] (S.C.R. 655) followed.     It is competent to a Hindu widow to enter into a compro- mise in the course of the suit bona fide in the interest  of the  estate and not for her personal advantage and a  decree passed  on such a compromise will be binding on  the  rever- sioner.   The question whether a compromise is a  bona  fide settlement  of a disputed right between the parties  depends on the substance of the transaction and in order that it may bind  the estate it should be a prudent and reasonable  act. [On  the facts their Lordships held, agreeing with the  High Court, that, the compromise in the present case was  neither prudent  nor reasonable so far as it affected the  interests of  the estate and of the ultimate reversioners and that  it was not, therefore, binding on the reversioners.]     Ramsumaran   Prasad  v.  Shyam Kumari  (49   I.A.  342), Mohendra Nath Biswas v. Shamsunnessa Khatun (21 C.L.J.  157) and  Imrit  Kunwar v. Roop Narain Singh (6 C.L.R.  76)  fol- lowed.  Mata Prasad v. Nageshar Sahai (52 I.A. 393)  distin- guished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 29 and 30 of 1951.  Appeals from the judgment and decree dated 26th

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October, 1943, of the High Court of Judicature at  Allahabad (Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising out  of the judgment and decree dated 6th August,  1937,  of the Court of the Additional Civil Judge at Agra in Suit  No. 30 of 1936.     M.C.  Setalvad and Kirpa Ram (K. B. Asthana, with  them) for the appellant in Civil Appeal No. 29 of 1951. K.N. Agarwal for the appellant in Civil Appeal No. 30 of 1951.     C.K. Daphtary (G. C. Mathur, with him) for the  respond- ents in both the appeals.     1952.   April 24.  The Judgment of the Court was  deliv- ered by MAHAJAN J. 796     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 5th December, 1932.  Mst. Prem Kuer, the  respondent  in the appeal, claiming herself to  be  the heir  to Shah Chiranji 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  of  1929, were not entitled to claim it.  It was further pleaded  that on  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 the estate validly in favour of Jwala Prasad and Madho 795    MAHAJAN  J.--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 14th May, 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 :--                 Shah Pirthi Raj                      :                      : -------------------------------------------------------------            :                                    :   :            :                                    :   : Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan Kuer  :   :   :                                  :          :   :

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 :                                  :          :   :   :                                  :    Hira Lal  :   :                                  :      :       :   :                                  :      :   Shah Jai   :                                  :      :    Kisen   :                                  :      : Mst. Ram Kuer                        :------------------- =Kherpal                             :  :               :    :                                 :  :               :    :                                 :Shah Jwala  Shah Sri ---------------------------------    :Prasad       Kisen      :         :          :          :(1)Khem       :      :         :          :          : Kuer      Shah Madho Ram Chand   Lachman   Kishen Lal     :(2)Phool     Lal              Prasad   =Mst. Umri     :  Kuer        :                                      :  :   ---------------                                      :  :      :       :                                      :  :     Sudar-  Mad-                                      : Dwarka  shan  sudan                                      : Prasad  Lal    Lal    ----------------------------------------------------------           :         :           :            :           :         :           :            :           :         :           :            :    Ganga Prasad  Jamna    Mst. Prem Kuer  Shah Chiranji Lal                  Prasad    =Lekh Raj       =Mst. Khem Kuer                               :                               :                  ------------------------                  :                      :                  :                      :             Manohar Lal         Lachmi Narain 797 Lal  and they entered into possession of it after the  death of Khem Kuer.  Some of the transferees who had been implead- ed  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 26th  Octo- ber, 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 trans- feree-defendants compromised with the plaintiff-appellant in the  High Court and the appeal was decided in terms  thereof in their favour. Two main points which are in controversy in this appeal  and require consideration, are:--     1.  Whether  the  compromise in suit  No.  120  of  1915 amounts  to  a family settlement and  binds  the  plaintiff- respondent, and,     2. 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  14th May,  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 53  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

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will  alleged to have been made by Shah Chiranji Lal on  the 13th  May,  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  genu- ineness of the will and claiming 798 that  the  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  28th  October, 1913.  The reversioners  had  also  made applications  in  pending suits for getting  themselves  im- pleaded 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 11th May, 1915, suit No.  120  of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the  alleged will of the 13th May, 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 18th May, 1915, Mohan 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  23rd September, 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 18th December, 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 had 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. 799     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,  orna- ments, 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  inter- fere 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  posses- sion of the entire property, of which Mst, Mohan Kuer  might have  been in possession in any way, subject to  the  provi- sions of condition 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 have 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  22nd December,  1915,  ordered that Khem Kuer and Mohan  Kuer  be impleaded as legal representatives of the late Shah Chiranji Lal.

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   On  the  2nd September, 1918, Khem Kuer brought  a  suit against  her mother-in-law Mohan Kuer for a  declaration  to the  effect that she alone was the lawful heir  of  Chiranji Lal and was the owner of the property, mentioned in schedule A and that the defendant had no concern with it.  This  suit was compromised between the parties on the 22nd April, 1919. Mohan  Kuer agreed that Khem Kuer’s suit be  decreed.   Khem Kuer undertook to look after Mohan Kuer in every way and  if she  desired to live separately from her, she agreed to  pay her a sum of Rs. 3000 per annum by way of maintenance.     Khem  Kuer  did not live long after  her  having  become owner of the entire estate of her husband under the terms of this compromise.  As stated already, she was murdered on the 28th August, 1919.  The estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the  18th December, 1915. It is alleged that either  on  the fourth  or the thirteenth day after the death of Khem  Kuer, Mohan Kuer when asked about the mutation of the estate, said that she had no concern with it and had relinquished it  and had  devoted  herself to worship.  On  the  15th  September, 1919, an application bearing the signature of Mohan Kuer  in Hindi  was presented by her mukhtar Chaturbhuj in the  court of  the  subordinate judge at Agra, praying  that  the  sale certificate  in  suit  No. 1919 (Shah Jwala  Prasad  v.  Rai Bahadur Shah Durga Prasad), be prepared in the names of Shah Jwala Prasad and Shah Madho Lal, for they were the heirs  in possession  of  the properties of Shah Chiranji  Lal.   This application (Exhibit N-31) contains the following recital:--     "Mst. Khem Kuer died on the 28th of August, 1919.  I  do not want to take any proceedings in my own name.  Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in  their names that all the mutation proceedings  etc.  are being  taken in the revenue court.  They have been made  the heirs  in possession of the entire property and an  applica- tion has been filed in their names in this court for prepara tion  of the sale certificate.  This petitioner has  got  no objection  to  the preparation of the  sale  certificate  in their names, for they are the heirs and are in possession of the property."     The  sale certificate was prepared accordingly.  On  the 16th September, 1919, Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Somra  in the court of the tahsildar of Etmadpur.  In column 5 of this application  (Exhibit  A-14) it was alleged that  they  were entitled to mutation by right of inheritance. Similar appli- cations were made in respect of other villages also.   (Vide Exhibit 128 etc.) Mutations were entered in all the villages on the basis that both of them were heirs in equal shares to the property of the deceased, though according to Hindu law, Shah Jwala Prasad alone was the   801 next heir. During the course of the mutation proceedings one Chintaman,  general attorney of Shah Jwala Prasad was  exam- ined on the 11th October, 1919 and he stated that Mst.  Khem Kuer  died on the 28th August, 1919, that Shah Jwala  Prasad and  Shah  Madho Lal were her heirs in  equal  shares,  that Mohan Kuer was the mother-in-law of the deceased and she did not want her name to be recorded and had made relinquishment in  favour  of Shah Madho Lal and Shah Jwala Prasad  in  the civil court on the 15th September, 1919.  Chaturbhuj, gener- al attorney of Mohan Kuer was examined in the same  proceed- ings  on  the 27th October, 1919, and he stated  that  Mohan

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Kuer  did not want her name to be recorded in place  of  the name of the deceased, that she had no objection to the entry of  the names of Shah Jwala Prasad and Shah Madho Lal,  that she had sent him for making that statement. He admitted  the relinquishment  filed by Mohan Kuer in the civil court  with respect  to  the property of Mst. Khem Kuer but he  was  not able to state when that relinquishment had taken place.  The tahsildar  after  recording  these  statements  ordered  the mutation of names in favour of the  two reversioners (Exhibit M-2). On  the  22nd November,   1919, the  two  reversioners  Shah Jwala  Prasad  and    Shah Madho Lal,  having  entered  into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs. 50,000 in  favour of the sisters of Shah Chiranji Lal by means of two deeds of gift.   (Vide Exhibit M-16).  These gift deeds  contain  the following recitals :-     "Shah  Chiranji Lal deceased was the owner of   Katariha estate  in which besides other villages the villages  speci- fied below were also included, and as he had no issue  after his death Mst. Khem Kuer became his heir as a Hindu widow of a  joint family subject to Mitakshara school of law. On  her death  we  the executants who were entitled  to  become  the absolute owners of the estate of Shah Chiranji Lal according to Shastras became the absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting the estate from him.   We obtained  possession over everything and mutation  of  names also  were effected in our favour from the revenue court  in respect of all villages. Shah Chiranji Lal deceased had  two sisters Mst. Ram Kuer and Mst. Prem Kuer and he had a desire during his lifetime to give them some property but owing  to sudden  death  he  could not himself  fulfil  his  intention during his lifetime.  We the executants accept this fact  as desired  by him.  Besides this the mother of  Shah  Chiranji Lal also desires the same thing and it is our duty to fulfil the same, and to give property to the Musammats aforesaid is considered  to  be a pious and good act from  the  religious point of view.  It is our duty also to respect their  wishes and  fulfil  the same, so that the people of our  caste  and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled.  Hence for the  reasons set forth above and keeping in view the honour of the family and  pious  nature of the act we the executants while  in  a sound state of body and mind  ............... make a gift of the following villages in favour of the donees."     The  donees subsequently made a number of  transfers  of the  property gifted to them and in every respect  the  gift deeds were acted upon.  Jwala Prasad, the presumptive rever- sioner, died in the year 1980.     In  suit  No. 49 of 1928 (same as No. 89  of  1929)  one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High  Court and also applied for postponement of the preparation of  the final decree. Stay was ordered on the applicants  furnishing security  in  the  sum of Rs. 20,000  for  future  interest, costs,  etc. On the 26th May, 1930, in compliance  with  the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst. Mohan Kuer as second party, containing the following recitals :--     "After  the death of Mst. Khem Kuer Mst. Mohan Kuer  was to become the owner of the property with    803 limited  interests as a Hindu mother, but  she  relinquished

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her  inheritance and did not agree to accept  any  property. By  means of a private arrangement, i.e., a family  arrange- ment,  it was decided as between Shah Jwala Prasad and  Shah Madho  Lal  that they should be the owners of  the  property aforesaid  in  equal shares.  Documents in  that  connection were  registered. Thus Shah Madho Lal executant No.1 is  the exclusive  owner of the property given below which is  being pledged  and hypothecated under this security bond.   Execu- tant No. 4, the second party, has, after hearing and  under- standing the contents of this security bond, joined in token of  the veracity of the facts noted above so that in  future she  might not be able to take objection to it and  so  that she  might  have no objection of any sort  to  the  security bond."  (Executant No. 4 was Mst. Mohan Kuer).     On  the 30th June, 1930, an affidavit bearing the  thumb impression  of Mst. Mohan Kuer was filed in the  same   pro- ceedings  containing the following statements :---     "I solemnly affirm and say that after the death of  Mst. Khem  Kuer I did not agree to accept property nor was I  the heir  and that I relinquished the entire property in  favour of  Shah  Jwala Prasad who became the owner  of  the  entire property which was in possession of Khem Kuer."     The  Subordinate Judge expressed the view that the  bond could  not be held to have been executed by Mohan Kuer,  she being a pardanashin lady.  He declined to accept the deed as sufficient  and valid security.  On the 9th July, 1930,  the High Court of Judicature at Allahabad dismissed the applica- tion for stay of proceedings.     On  the 15th July, 1931, Mohan Kuer instituted suit  No. 24 of 1931 in the court of the subordinate judge of  Mathura against the widows of Shah Jwala Prasad, Shah Madho Lal  and his  sons  and  a number of transferees who  had  taken  the property  from  these two reversioners.  In para  8  of  the plaint it was alleged 804 that the plaintiff was an old pardanashin woman, was  simple and of week intellect and illiterate, that on account of the murder  of Mst. Khem Kuer, she was very terror-stricken  and was  full of sorrow and had no knowledge about  her  rights, that the third defendant and Jwala Prasad who wanted to  get the property took undue advantage of the plaintiff’s  afore- said condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the  muta- tion of names in their favour. In para. 12 it was said  that the  defendants had got the thumb impressions of the  plain- tiff  on certain documents without telling her the  contents of  those papers, simply by saying that a decree for a  con- siderable amount had been passed against the property and it was  going  to be sold in auction and that a  security  bond must be furnished for saving the property. She prayed for  a decree  for  possession of the property in  dispute  in  her favour  against the defendants. During the pendency of  this suit Mohan Kuer died on the  5th December, and on her  death an  attempt was made by the present plaintiffs to get  them- selves impleaded as her legal representatives but on the 9th October  1934 it was held that the claim of Mst. Mohan  Kuer was of a personal character and the suit therefore could not proceed owing to abatement.  It was, however, noted that the legal  representatives  could file a separate  suit,  if  so advised.   It is in consequence of this order that the  suit out of which this appeal arises was filed on the 30th  April 1936.  It  was contended by the learned  Attorney-General  that the  High Court on mere suspicions and  unwarranted  assump- tions  had  found the main issues in the  case  against  the

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appellant  and had erroneously held that the  compromise  in suit No. 120 of 1915 was not binding on the ’plaintiffs  and that  the  surrender by Mohan Kuer was not  valid  surrender under  Hindu  law.   After hearing the  learned  counsel  at considerable  length, we did not think it necessary to  hear the respondent in reply, as in our opinion, the decision  of the High Court on both the points was right. 805     On the point of surrender, the learned Attorney  General contended  that the widow effaced herself and put  both  the reversioners  in possession of the property half  and  half, and  agreed to take Rs. 3,000 from them for her  maintenance and  that  the fact of surrender was  satisfactorily  proved from the conduct of Mohan Kuer in allowing the estate to  be mutated  in  the names of the reversioners and  in  allowing them to take possession of it, also by the different  state- ments  made by her and from the other documentary  and  oral evidence  led in the case.  Emphasis was laid on the  state- ments  contained in the application (Exhibit M-31),  on  the statement of her mukhtar Chaturbhuj, and on the recitals  of the security bond and the affidavit, Exhibit P-30.     Whether  Mohan Kuer effaced herself and surrendered  the property, or whether she merely abandoned it, or whether she entered  into an arrangement for the division of the  estate between   herself,  the  two reversioners and the  daughters and  their  sons it is not possible to  predicate  with  any amount  of certainty. No definite opinion can be offered  on the  question whether whatever she did, she did  voluntarily after fully realizing the consequences of her act and wheth- er  as a pardanashin lady she had.been properly  advised  on the matter or whether she merely acted on sentiment.     Considerable doubt is cast on the story of surrender set up  by  the defendants by the recitals in the two  deeds  of gift,  dated  22nd  November, 1919,  extracted  above.   The donors  did not base their title to the property  either  on the compromise of 1915 or on the surrender of Mohan Kuer  of the  year 1919 or on the will; on the other hand, they  said that they had become owners of the property of Chiranji  Lal by inheritance under Hindu law after the death of his widow. Both  of them could not possibly inherit the  property  half and  half  under Hindu law. Moreover, there is no  clear  or definite  evidence of either the time when  the  arrangement was  made  or of the terms thereof.  The evidence  on  these points is vague and 806 unsatisfactory.  It is completely wanting as to the arrange- ment  under  which  Mohan  Kuer became entitled  to  receive Rs. 3,000 from them.     The conduct of Mohan Kuer and the various statements  by her  no  doubt do indicate that she cut off  her  connection with the bulk of the estate of Chiranji Lal after the  death of the widow and received a sum of Rs. 3,000 from the rever- sioners and it is also clear that at her instance the rever- sioners  gave  property of the value of Rs.  50,000  to  her daughters,  but in the absence of any satisfactory  evidence as  to  the  precise nature of this arrangement  it  is  not possible to conclude that the widow after fully realizing as to  what she was doing and after proper advice effaced  her- self. In this connection the allegations made by her in  the suit of 1931 cannot be altogether ruled out from  considera- tion.     Assuming  however for the sake of argument  that  Mobart Kuer  purported to relinquish her estate in favour of  Jwala Prasad  and  Madho Lal, in our opinion,  the  relinquishment connot  in law operate as an extinction of her title in  the

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estate.  The principle underlying the doctrine of  surrender is  that  it cannot possibly be made in  favour  of  anybody except the next heir of the husband.  Vesting of the  estate in  the next reversioner takes place under operation of  law and  it  is not possible for the widow to say  that  she  is withdrawing herself from the husband’s estate in order  that it  may  vest in somebody other than the next  heir  of  the husband.   It  was held by this court  in  Mummareddi   Nagi Reddi v.  Pitti  Durairaja Naidu(1) that so far as the  next heir is concerned, there cannot be a surrender of the total- ity  of  the interest which the widow had, if  she  actually directs  that a portion of it should be held or  enjoyed  by somebody  else other than the husband’s heirs and  that  the position is not materially altered if the surrender is  made in favour of the next heir with whom a stranger is associat- ed and the widow purports to. relinquish the estate in order that it may vest in (1) [1951] s.c.R. 655. 807 both  of them.  Though in the written statements of the  two sets  of defendants different versions of the  character  of the  arrangement were pleaded, the learned  Attorney-General before  us stated that the surrender by the widow  was  made both in favour of Jwala Prasad and Madho Lal in equal  moie- ties.   Madho  Lal admittedly was not the  next  reversioner entitled  to succeed to the estate.  Thus the  surrender  of the  totality of the interest of the widow was not  made  in favour  of the next heir.  That being so, it cannot  operate as  a  valid surrender.  If the surrender could  be  held  a valid one, then obviously succession that had opened out  in 1919  and vested in the next heirs could not be divested  at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer, but in view of the invalidity of the  surren- der it has to be held that succession to Shah Chiranji Lal’s estate opened in 1932 and the plaintiffs as next heirs  were entitled to take it.     The  next  question  for consideration  is  whether  the compromise  of  1915   entered into between  Mohan  Kuer  as guardian  of  Khem Kuer, and the two  reversioners  who  had claimed  the estate on the basis of a will, was a bona  fide family  arrangement and thus binding on the ultimate  rever- sioners,  the plaintiffs. It is well settled that  when  the estate of a deceased Hindu vests in a female heir, a  decree fairly  and properly obtained against her in regard  to  the estate  is in the absence of fraud or collusion  binding  on the  reversionary  heir, but the decree against  the  female holder  must  have involved the decision of  a  question  of title  and not merely a question of the  widow’s  possession during her life (vide Venayeck Anundrow v. Luxumeebaee  (1). This principle of res judicata is not limited to decrees  in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the inter- est of the estate, and not for’ her personal advantage,  and a  decree  passed  on such compromise is  binding  upon  the reversioner.  The question whether the transaction (1) (1861-1863) 9 M.I.A. 520. 808 is  a bona fide settlement of a disputed right between   the parties  depends on the substance of the transaction and  in order  that it may bind the estate it should  be  a  prudent and  reasonable  act in the circumstances of the  case.   As observed  by their Lordships of the Privy Council  in   Ram- sumran  Prasad v.  Shyam   Kumari (1), the true doctrine  is laid down in Mohendra Nath Biswas v. Shamsunnessa Khatun(2), decided in 1914, and it is that a compromise made bona  fide

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for  the  benefit  of the estate and not  for  the  personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest. That  being so,we proceed to inquire whether the  compromise in  the present case is one that can be supported  on  these principles.  In agreement with the High Court we are of  the opinion  that  it  cannot be so supported.   Mohan  Kuer  in entering  into the compromise on behalf of the  minor  widow never  applied  her mind to the interests of  the   ultimate reversioners.  She  entered  into it for  her  own  personal benefit  and for the personal benefit of the minor widow  in complete indifference as to what was to happen to the estate after  their respective deaths. Under this compromise  these two  ladies  got  all the rights they had  under  Hindu  law without sacrificing an iota of their property and then  they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal.  It did not matter in the least to the  two ladies  what was to happen to the estate after their  deaths and  they  were quite willing to let this estate go  to  the plaintiffs  in  the suit, though one of them  was  a  remote reversioner.   The  compromise  therefore was  made  in  the interest  of  the  actual parties to the  suit  in  complete disregard  of  the interests of the  ultimate  reversioners. The  widows undoubtedly acted with reasonableness  and  pru- dence  so far as their personal interest was  concerned  but further  than that they did not see. The claim, of  the  two plaintiffs in Suit No. 120 of 1916 was adverse to the inter- est of the (1) (1922) 49 I,A. 342.           (2) (1915) 21 C.L.J. 157.   809 reversion as they were claiming as legatees under the  will. The  widows while entering into the  compromise  safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the rever- sioners and surrendered nothing out of their rights, and  it cannot  be said that in the true sense of the term it was  a bona  fide  settlement of disputed rights where  each  party gave up something of its own rights to the other. The plain- tiffs  got  an admission from the widows in  regard  to  the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance  with Hindu law.  By this admission the widows lost nothing  what- soever.   Those who lost were the ultimate reversioners  and their  interest  was not in the least either  considered  or safeguarded.  In these circumstances it seems to us that the compromise  cannot be held to be a bona fide  settlement  or family  arrangement of disputed rights and was entered  into by  Mohan Kuer for her personal advantage and of the  advan- tage  of  Khem Kuer. The present case is  analogous  to  the decision of the Privy Council in Imrit Konwur v. Roop Narain Singh  (1). There in a dispute between a person claiming  to be  an adopted son of the previous owner and the  widow  and her daughters who would have title after her, the widow gave up  her daughters’ rights in consideration of her  receiving practically unimpaired what she could.  Their Lordships held that such a compromise could not stand, as indeed it was not a compromise at all.     The learned Attorney-General laid considerable  emphasis on  the decision of their Lordships of the Privy Council  in Mata  Prasad v. Nageshar Sahai (2). In that case  the  widow admitted  the right of the reversioner under Act I  of  1869 and  agreed  that succession will be governed by  that  Act. The  reversioner agreed to let her remain in possession  and undertook  that  he would not alienate the  property  during

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that  period.  The widow in that case was not constituted  a full  owner  under Hindu law and she did not  get  her  full rights (1) (1880) 6 C.L.R. 76.          (2) (1925) 52 I.A.393 810 under  the  compromise  but as a matter  of  concession  was allowed to remain in possession by the reversioner and as  a matter  of fact she sacrificed her rights to a  considerable extent  and  did not act for her personal   benefit  at  all except  to the limited extent mentioned above.  In the  cir- cumstances  of that case it was held   "that the  compromise was a bona fide family settlement of disputed claims and was binding on the reversioners. In the present case the devolu- tion  of  the property after the death of Chiranji  Lal  was agreed to be in accordance with Hindu law and that being so, the further devolution of the property after their death was no  concern  of the widows. That was a matter of  law.   The ultimate reversioners were stabbed in the back by the  widow and such a compromise cannot be held to be binding on  them. A  large number of cases were cited before us in which  com- promises  under different circumstances had been held to  be binding on the reversioners.  We consider that it is  wholly unnecessary   to  examine those cases  because  the  circum- stances  in  which those compromises were  made  were  quite different  from  the  circumstances  of  the  present  case. Considering  all the materials which were placed before  us, we hold in agreement with the High Court that the compromise in  the present case was neither prudent nor  reasonable  so far  as it affected the interests of the estate and that  of the ultimate reversioners and that being so, is not  binding on the plaintiffs.  For the reasons given above this  appeal fails and is dismissed with costs. Civil Appeal No. 30 of 1951.      This is an appeal by one of the transferees and  arises out  of the same suit out of which arises appeal No.  29  of 1951.  On  the 13th June, 1928, Shah Madho Lal and  his  son Shah  Madhusudan Lal executed a sale deed (Exhibit M-13)  in favour  of  the appellant for the sum of  Rs.  21,000.   The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad, pleaded that he was  protected by the provisions of section 41 of the Transfer of  Property Act. 811 The  High  Court held that in cases where a person  who  has allowed  another  to occupy the position  of  an  ostensible owner  has a limited estate, the rule of section 41  applies only  during  the lifetime of the limited owner and  is  not available  to protect transferees against the claim  of  the reversioners.  A number of authorities were cited in support of  this proposition. The learned counsel for the  appellant was unable to displace this proposition.  It is quite  clear that the plea of section 41 of the Transfer of Property  Act could only be raised against Mohan Kuer or her legal  repre- sentatives but is not available against the plaintiff, Mohan Kuer having acquired a limited life estate. This  contention is therefore rejected.     The learned  counsel then  contended that  the plaintiff Prem Kuer had relinquished her rights in favour of her  sons in 1933 and she had no locus standi to maintain the suit  or to  appeal  against the decision of the trial judge  as  the title to the estate had vested in her sons.  The  plaintiffs had  alleged in para. 13 of the plaint that the  relinquish- ment  was inoperative and void. The defendants did not  dis- pute  that  allegation and it is not open to  them  at  this stage to take up the plea which they could have taken in the

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trial court or in the appellate court.  Even in the  grounds of  appeal  to this court the point was not taken.   If  the point  was  taken at the proper stage the  plaintiffs  might well  have  proved  that the relinquishment  was  no  longer operative  or they might have amended the plaint and put  it in proper form.     The learned counsel adopted the arguments of the learned Attorney-General  in  the other appeal and for  the  reasons given  therein these points are decided against  him.   This appeal therefore also fails and is dismissed with costs. Appeals dismissed.     Agent for the appellant in Civil Appeal No. 29 of  1951: S. S. Shukla.     Agent  for the appellant in Civil Appeal No. 80  of  195 I:P. C. Agarwal. Agent for the respondents in both: Rajinder Narain. 812