22 March 1955
Supreme Court


Case number: Appeal (civil) 92 of 1950






DATE OF JUDGMENT: 22/03/1955


CITATION:  1955 AIR  481            1955 SCR  (2)  22

ACT: Compromise  or  family  arrangement-Proof  of-Assumption  of antecedent  title of some sort in the  parties-Reversioner’s assent to an alienation-Legal effect thereof.

HEADNOTE: A  family arrangement can, as a matter of law,  be  inferred from a long course of dealings between the parties. It  is well settled that a compromise or family  arrangement is based on the assumption that there is an antecedent title of  some sort in the parties and the agreement  acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share  and recognising the right of the others, as they had  previously asserted it, to the portions allotted to them  Respectively. That  explains why no conveyance is required in these  cases to  pass  the title from the one in whom it resides  to  the person  receiving  it under the family arrangement.   It  is assumed  that the title claimed by the person receiving  the property under the arrangement had always resided in him  or her  so far as the property falling to his or her  share  is concerned and therefore no conveyance is necessary. But  in  view of the fact that the Courts lean  strongly  in favour of family arrangements that bring about harmony in  a family  and do justice to its various members and avoid,  in anticipation, future disputes which might ruin them all  the Supreme  Court,  carrying the principle further,  upheld  an arrangement  under  which one set of  members  abandons  all claim  to  all title and interest in all the  properties  in dispute and acknowledges that the sole and absolute title to all  the  properties  resides in only one  of  their  number (provided  he or she had claimed the whole and made such  an assertion of title) and are content to take such  properties as  are  assigned to their shares as gifts pure  and  simple from  him or her, or as a conveyance for consideration  when consideration is present. The  legal  position  in such a case  would  be  this.   The arrangement or compromise would set out and define that  the title claimed by A to all the properties in dispute was  his absolute  title as claimed and asserted by him and  that  it had always resided in him.  Next, it would effect a transfer



by A to B, C and D (the other members to the arrangement) of properties X, Y and Z; and thereafter B, C and D would  hold their respective titles under the title derived from A.  But in  that event, the formalities of law about the passing  of title 23 by transfer would have to be observed, and under the present state of law either registration  or twelve  years’  adverse possession would be necessary.     But  in the present  case the arrangement was made in 1875 when   the   Transfer    of Property  Act was not in force and no writing was  required; and  as there is no writing, the Registration Act  does  not apply either.  Therefore, the oral arrangement of 1875 would be  sufficient  to pass title in this way and that  is  what happened. Once  a reversioner has given his assent to  an  alienation, whether  at  the time, or as a part of the  transaction,  or later  as  a distinct and separate act, he is  bound  though others may not be, and having given his assent he cannot  go back  on it to the detriment of other persons; all the  more so when he himself receives a benefit. It is settled law that an alienation by a widow in excess of her  powers is not altogether void but only voidable by  the reversioners,  who  may  either  singly  or  as  a  body  be precluded from exercising their right to avoid it either  by express  ratification or by acts which treat it as valid  or binding. The  principle  applicable  to the present case  is  a  rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected  to assent  to  a transaction voidable at his instance  and  has thus  elected  not to exercise his right to avoid  it,  from going back on that and avoiding it at a later stage.  Having made his election he is bound by it. Held,  that  in  the present case the plaintiff  who  is  in titulo   now  that  the  succession  has  opened  out,   had unequivocally   assented  to  the  arrangement   with   full knowledge of the facts and accepted benefit under it, so  he is now precluded from avoiding it, and any attempts he  made to  go behind that assent when it suited his purpose  cannot render  the  assent once given nugatory even though  it  was given  when he was not in titulo and even though the  assent was to a series of gifts. Mst.  Hardei v. Bhagwan Singh, (A.I.R. 1919 P.C. 27);  Clif- ton v. Cockburn ( [1834] 3 My. & K. 76); William v.  William [1866]  L.R. 2 Ch. 294); Bani Mewa Kuwtivar v.  Rani  Hutlas Kuwar [1874] L.R. I I.A. 157); Khunni Lal v. Gobind  Krishna ( [1911] L.R. 38 I.A. 87); Bamsumirn Prasad v. Shyam Kumar ( [1922] L.R. 49 I.A. 348); Baia Modhu Sudhan Singh v Booke  ( [1897] L.R. 24 I.A. 164); Bijoy Gopal v. Sm.  Krishna [1906] L.R.  34 I.A. 87); Ramgouda Annagowda v. Bhauaheb  (  [1927] L.R.  54 I.A. 396); Dhiyan Singh v. Jugal Kishore  (  [1952] S.C.R. 478 at 488); Rangaswami Gounden v. Nachiappa Gouinden ( [1918] L.R. 46 I.A. 72 at 86 & 87), referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 92 and  94 of 1950. 24 Appeals from the Judgments and Decrees dated the 20th  March 1942  of the Allahabad High Court in First Appeal  Nos.  154 and  152  of 1934 arising Out Of the Judgments  and  decrees dated the 25th August 1932 of the Court of First  Additional



Subordinate   Judge,  and  First  Additional  Civil   Judge, Moradabad   in  Original  Suit  Nos.  90  and  87  of   1931 respectively. N.   C.  Chatterji,  (S.   S.  Shukla  with  him)  for   the Appellants. Gopi Nath Kunzru, (B.  P. Maheshwari with him) for Respondent No. 1. P.   C.  Agarwala, for Respondent No. 2 in Civil Appeal  No. 94 of 1950. 1955.  March 22.  The Judgment of the Court was delivered by BosE  J.-These  appeals arise out of two  suits  which  were heard together along with two other suits with which we  are not  now  concerned.   All  four  raised  the  same  set  of questions  except for a few subsidiary matters.   They  were tried  together  and  by common consent  the  documents  and evidence in the various cases were treated as common to all. They  were all governed by one common judgment, both in  the first Court and on appeal.  The defendants appeal here. The plaintiff, Mukand Ram, is common to all four cases.   He sues  in  each suit as the reversioner to one  Pandit  Nanak Chand who was his materdal grandfather.  The family tree  is as below: 25                Nanak Chand d. 23-7-75                               W: Mst. Pato. d. Jan. 1875. Mst. Maha Devi      Mst. Durga Devi     Mst. Har Devi d. 1912                  d. 1888          d. 10-9-19 H: Nathmal Das      H: Jwala Prasad     H: Bhawani                                         Shankar Mst. Ram Pyare Bhukhan Saran  Banwari Lal Sital Prasad Shyam Lal Pyare-                                                    Lal                (dead)        (dead)             (deft.5)                               Brij Lal    Mukand Ram                              (dead)       (Plff.No.1) 26 The  plaintiff’s  case is that the properties  in  the  four suits belonged to Nanak Chand who died on 23-7-1856  leaving a  widow  Mst.  Pato and three daughters, Maha  Devi,  Durga Devi  and  Har  Devi.  On his death, his  widow  Mst.   Pato succeeded.   She  died in January 1875 and the  estate  then went  to the three daughters.  Of them, Durga Devi  died  in 1888,  Maba  Devi  in  1912  and  Har  Devi  in  1919.   The plaintiff’s  rights  as reversioner accrued  on  Har  Devi’s death   on   10-9-1919.   But  before  this   came   certain alienations  which the plaintiff challenges in  the  present suits.  The suits were filed on 8-9-1931. In  Civil  Appeal  No. 92 of 1950, the  challenge  is  to  a mortgage  effected  by Durga Devi on 3-3-1887 in  favour  of Sahu  Bitthal  Das.   The mortgagee sued  on  his  mortgage, obtained a decree and in execution purchased the  properties himself.  The plaintiff’s case is that Durga Devi only had a life estate and, as there was no necessity, the mortgage and the subsequent auction purchase do not bind him. In  Civil Appeal No. 94 of 1950, there are two  alienations, both  sales.  The first, dated 23-9-1918, was by  Pyare  Lal (son of Durga Devi) in favour of Shyam Lal, son of Mulchand. (This  is  not the Shyam Lal who was Pyare  Lal’s  brother). The vendee later sold the properties to the first and second defendants  on  5-3-1927.   One of the  vendees,  the  first defendant,  is  yet  another Shyam Lal:  Shyam  Lal  son  of Harbilas. The other sale was by Brij Lal’s guardian on behalf of  Brij Lal,  Brij Lal then being a minor.  It was on 25-11-1919  in favour  of  Chheda  Lal.  The first  and  second  defendants



preempted  this  sale  after  a  fight  in  Court  and  took possession under the decree which they obtained. The plaintiff’s case is that Har Devi was alive at the  date of  the first sale and as the reversion had not  opened  out Pyare  Lal bad no power to sell.  In the case of the  second sale,  the reversion had opened out but Brijlal  being  more remote than the plaintiff got no title, so that sale is also bad. The defendants’ case is that the properties in these 27 two suits (as also in the other two suits with which we  are no  longer  concerned)  did not belong to  Nanak  Chand  and formed  no part of his estate; they belonged exclusively  to Mst.  Pato as part of her personal estate. On 22-1-1864 Mst.  Pato executed a document which she called a deed of agreement but which, if it is anything at all,  is a  will.  There are no other parties to it and she  purports thereby  to dispose of her properties after her death.   The defendants  in Civil Appeal No. 92 of 1950 have called it  a will.   After saying that she will remain in possession  and occupation  as long as she lives, Pato says that  after  her death her three daughters will be the owners and will either remain  joint possession or will divide the estate in  equal shares  and,  in that event, will take possession  of  their respective shares and will be the "owners" of them. But  before  she died Pato made another disposition  of  her estate  during  her  life time in the year  1875  which,  of course,  abrogated  the will.  This was  done  orally.   The defendants  say that this was a family arrangement in  which each  of  the three daughters was given  certain  properties absolutely  so  that  each  became  the  absolute  owner  of whatever  fell to her share.  Pato also gave  properties  to each  of  her four grandsons who were  then  living,  namely Kanhaiya Lal, Mukand Ram, Banwari Lal and Sital Prasad.  The defendants  asserted  that  they  also  took  separate   and absolute  estates  immediately and said that each  has  been holding   and  dealing-with  the  properties   so   divided, separately and as absolute owners, ever since.  Thus, at the dates  of the transfers now challenged, each alienor had  an absolute title to the properties alienated and the plaintiff has none. The  trial Court held that though most of the properties  in Pato’s  hands  came  from  her  husband  Nanak  Chand,   the plaintiff  bad not shown that the properties with which  his four  suits  were  concerned formed part  of  Nanak  Chand’s estate. An issue was also framed about the family settlement and one about estoppel. On both those point      28 the  learned Judge found against the plaintiff.  The  result was that all four suits were dismissed. The  High Court reversed these findings on appeal  and  held that all the properties, including the ones in suit,  formed part of Nanak Chand’s estate.The   learned Judges also  held that though there was a family arrangement, it was a  purely voluntary  settlement made by Pato and was not made  as  the result  of any dispute and that in any case it did not  bind the  plaintiff  who was not a party to it and who  does  not claim  through any of those who were.  They also  held  that there  was no estoppel.  Accordingly, the plaintiff’s  claim was decreed in each of the four suits. Appeals  were  filed here in all four suits by  the  various defendants  but  Civil Appeals Nos. 91 and 93 of  1950  were dismissed  for want of prosecution, therefore the decree  of the  High Court in the two cases out of which those  appeals



arose  will  stand.  We are now only  concerned  with  Civil Appeals Nos. 92 and 94 of 1950. In  the lower Courts much of the effort was concentrated  on finding  out  which items out of a large  mass  of  property belonged to Nanak Chand and which did not.  We do not intend to  look into that because it it is unnecessary on the  view we  take.  We will therefore assume, without deciding,  that all  the  properties in dispute were part of  Nanak  Chand’s estate. We will deal first with the family arrangement.  The learned counsel  for the plaintiff argued that the defendants  never set up a family arrangement though they have used the  words "family  settlement".   He contended that what  they  really pleaded was a gift out and out by Pato.  It was pointed  out that  the defendants never suggested a dispute, neither  did they suggest that any one ever questioned or doubted  Pato’s absolute  title to the property.  Therefore, it was  argued, the present case, which is based on the assumption that  the property  was  not Pato’s and that she was  laying  wrongful claim to it, cannot be allowed because it flies in the  face of the defendants’ pleadings. 29 There  is  not much in this objection.  The  defendants  did plead  a family arrangement and the matter was put in  issue and  fought  out.   The defendants’ case was  that  all  the property  was Pato’s.  The plaintiff’s case was that it  was all Nanak Chand’s.  The issues were- "4. Whether Mst.  Pato gave properties separately to each of her  three daughters and to daughter’s sons and put them  in proprietary possession and they remained absolute owners  of their properties and what is its effect on the case? 5.   Whether the arrangement mentioned in issue No. 4 was by way  of  family  settlement and what is its  effect  on  the case?" These  issues are broad enough to cover the  present  point. If  the  properties really belonged to Nanak Chand,  as  the plaintiff  claims,  then the case for  a  family  settlement becomes  all  the stronger, for it is clear that  Pato  laid claim  to  them  as her own properties of  which  she  could dispose  by  will,  for that is what the  document  of  1864 really is.  If, on the other hand, they were her properties, as the defendants say, then she had the right either to gift them  outright or to settle them as the defendants  say  she did  by  way of a family arrangement.  In either  case,  the matter was fully fought out and neither side was misled. The  real  question  we have to decide is,  has  the  family arrangement been proved?  We think it has. The direct evidence on this point is that of Shyam Lal (D.W. I in C.A. 94/50) and the first defendant there.  He tells us that  he  had  money lending  transactions  with  Har  Devi, Kanhaiya Lal, Shyam Lal and Pyare Lal on unregistered  bonds from  1902  till 1910 and from 1910 on  registered  mortgage bonds.  He says that- "They" (that is to say, Har Devi, Mukand Ram, Kanhaiya  Lal, Shyam Lal and Pyare Lal) "showed one copy of a deed of  will and  said  that  Mst.  Pato had given the  property  to  her daughters and grandsons........ I am illiterate and Kanhaiya Lal brother of Mukand Ram had the deed of will read over  to me at 30 the time of mortgaging property in 1909 or 1910.  It was  by means of that paper that I came to know that Mst.  Pato  had made her daughters and grandsons absolute owners and I  know of the property which was mortgaged to me". Now it is true that the so-called will of 1864 does not make



provision for the grandsons, nor does it expressly confer an absolute  estate  on  the  legatees,  but  the  witness   is illiterate  and had to depend on what he was told about  the contents  and meaning of the document, and what we  have  to test is the truth of his assertion that the plaintiff Mukand Ram and Kanhaiya Lal, and other members of the family,  told him that Mst.  Pato had given the property to her  daughters and grandsons.  If they told him this, as he says they  did, then  it  operates as an admission against  Mukand  Ram  and shifts the burden of proof to him because he was one of  the persons who made the statement.  The statements made by  the others  are not relevant except in so far as they prove  the conduct of the family. The plaintiff (P.W. 11 in C.A. 91/50) admits that Mst.  Pato divided the estate but says that it was only for convenience of management and that neither she nor her daughters had, or pretended  to  have, anything more than a life  estate.   He denies  that there was any gift or family arrangement.   But he  had to admit that the grandsons also got  properties  at the  same  time.   His explanation is that it  was  for  the purposes of "shradh" and pilgrimage to Gaya and he says that though  they  were  given  possession  they  were  not   the "owners". We  now have to choose between these two witnesses  and  see which  is telling the truth.  But before doing that we  will advert  to another member of the family, Pyare Lal, who  was examined as a witness (D.W. 17) in C.A. 92/50.  He admits  a series of sales made by him but says that he had no wilt  of his own and that he did just what Mukand Ram told him. Now to go back to the year 1864 when Mst.  Pato made the so- called will of 1864.  This document was 31 construed  by the Privy Council in Mast.  Hardei v.  Bhagwan Singh(1) and their Lordships said- "In  the events which happened this document did not  become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property". Mukand  Ram  was  not a party to  that  litigation  and  the decision  does  not bind him but it operates as  a  judicial precedent  about  the  construction  of  that  document,   a precedent with which we respectfully agree.  She says  there that  the  property "belongs exclusively to me  without  the participation of anyone else".  That assertion, coupled with the fact that she purported to dispose of the property after her  death  (which  she could not have  done  as  a  limited owner), and taken in conjunction with the subsequent conduct of  the  daughters  and  that  of  the  grandsons,   imports admissions by them that that was her claim and leaves us  in little  doubt about what she meant.  We therefore reach  the same conclusion as the Judicial Committee and hold that Mst. Pato claimed an absolute estate in 1864. We  will now examine the conduct of the family after  Pato’s death and the claims put forward by them from time to  time. First,  we have the statement of Mukand Ram in  the  witness box  (P.W.  11  in  C.A. 91/50) that  on  Pato’s  death  her daughters took separate possession of the properties in  the following villages and towns: Har Devi  Qutabpur Amawti.            Shakerpore.            Lalpur.            Bagh Alam Sarai.            Houses, Shops, etc. in Bazaar Kot,            Sambhal. Durga Devi.   Keshopur Bhindi.



             Tatarpore Ghosi.               Half Bilalpat.               Qumharwala Bagh. (1)  A.I.R. 1919 P.C. 27. 32           Shehzadi Serai.            Houses, shops, etc. in Sherkhan            Serai, Sambhal. Maha Devi.        Guretha.                   Behrampur                  Half Bilalpat.                   Mahmud Khan Serai.                  Houses, etc. in Kot.                  Grove in Alam Serai The  plaintiff  also  admits that  the  grandsons  got  some properties  but does not give details.  All he says is  that they  were given properties "for purposes of performance  of ’shradh’ and pilgrimage to Gaya". Next,  we  have a long series of  alienations  by  different members  of  the family with claims  to  absolute  ownership which could only have sprung from titles derived either from a  gift  from  Pato or from a  family  settlement.   We  say "family settlement" because we know now that the bulk of the property  (and according to the High Court the whole of  it) was  Nanak  Chand’s.   We  also know that  some  of  it  was purchased by Pato after Nanak Chand’s death from the  income of  the estate.  Pato had the right to  purchase  properties for  herself  if she wanted instead of adding  them  to  her husband’s estate and we know she claimed title to the  whole as an absolute owner in 1864.  This claim may have been  due to a mistaken view of Hindu law that in the absence of  sons the  widow gets an absolute estate, or it may have been  due to other reasons, but that she made the claim is clear,  and the  subsequent  conduct and statements of the  family  show that  they either admitted the correctness of her claim  and accepted the properties as gifts from her or they agreed  to and  acted on a family settlement to avoid disputes  on  the basis that each got an absolute title to whatever properties fell to his or her share at the time of the division. The  grandsons were minors at the time and were not  parties to this arrangement, whatever its origin, and of course  the widow and daughters could not enlarge their limited  estates so as to bind the grandsons 33 however  much  they agreed among themselves.   But  for  the moment  we are not considering the legal effect of  whatever the  arrangement was but whether the conduct of  the  family gives rise to an inference that there was an arrangement  in fact. A  family  arrangement can, as a matter of law,  be  implied from a long course of dealings between the parties:  Clifton v. Cockburn(1) and William v. William(1); and we have such a course  of dealing here.  First, there is a long  series  of alienations  by Har Devi stretching from 1877 down to  1916. We tabulate them below with the recitals she made about  her title. 17-1-77 Mortgage Qutabpur Amawti  "owned by me".  Ex.   LL-1 (C.A. 94) 11-1-78    do       do             Owner: "devolved                                    on me from my   Ex. 2J1                                     mother".       (C.A.91) 20-3-81    do       do             Owner: "right of Ex.2H1                                   inheritance from  (C.A.91)                                   my father". 7-9-83    Sale.     Lalpur         Owner: "right of



                           inheritance". Ex. 2Gl (C.A. 91) 23-8-87 Mortgage Qutabpur Amawti No recital Ex.L (C. A. 92) 15-7-05     do       do               Absolute owner                             with KanhaiyaEx. BB-1 (C.A. 94)                             Laland Mukand                             Ram. 19-11-08     do     do         No recital Ex. M-1 (C.A. 94)                                  do 14-11-14     do     do            do        Ex. V (C.A. 92) 23-3-15      do     do        Owner: with    Ex.X (C.A. 92)                                Mukand Ram 17-2-16       do    do        With Mukand  Ex. N-1 (C.A. 94)                               Ram. No recital 28-3-16       do    do        Owner: with                               Mukand Ram                              and his son   Ex. (G.A. 94)                              Ram Gopal 22-1-18       do    Behrampur Owner: with Ex.DDD-1(C.A. 91)                    Buzurg     Mukand Ram                              and Bhukan                               Saran 23-3-18        do     do    Owner: with Ex. M 1(C. A. 91)                              Mukand Ram                             and Pyare Lal      It will be observed that Har Devi sometimes claimed  to be  absolute owner by right of inheritance from  her  father and  at  others  from  her mother in  respect  of  the  same village, but whichever way it was, (1)  [1834] 3 My. & K. 76. (2)  [1866] L.R. 2 Ch. 294. 5 34 the  claim to absolute ownership Was consistent  throughout. This  could only be referable to a family  settlement  where the  origin  of  the property was in  doubt  but  which  was settled  by bestowing, or purporting to bestow, an  absolute estate on the daughters. It will also be noticed that in later years Har Devi  joined with  Mukand Ram but still claimed an absolute estate  along with  him.  This was for the following reason.   Soon  after Mukand   Ram   attained  majority,  the  mother   and   sons quarrelled.   On  11-2-1890 they referred their  dispute  to arbitration, Ex.  RR-1 (C.A. 94).  Mukand Ram became a major in  1890  and Kanhaiya Lal in 1884.  It appears  from  their agreement  of  11-2-1890 that Har Deyi claimed  an  absolute title while her sons said she was only a limited owner.  But the sons agreed to accept a decision to the effect that  she had  an  absolute  estate in the whole of  the  property  in dispute  between them should the arbitrator so decide.   The properties were-- Qutabpur Amawti, Shakerpore, Houses, shops, etc. in Mohalla Kot in Sambhal. Another  significant  thing is that in  this  document  both mother  and sons agreed that all of Nanak Chand’s  grandsons then  in  being were in separate possession  and  absolutely entitled  to certain other properties which  they  expressly agreed   were  not  to  form  the  subject-matter   of   the arbitration.   Here  again,  these  titles  could  only   be referable  to a family arrangement, for the grandsons  could not have got an absolute estate in any other way; nor  could Har Devi.  Mukand Ram tells us as P.W. 11 (C.A. 91) that  he and  his brother Kanhaiya Lal got Shakerpore and some  shops in Bazar Kot, Sambhal, as a result of this arbitration,  but does  not say what happened to Qutabpur Amawti.  But  it  is



significant  that Har Devi’s dealings with  Qutabpur  Amawti after  this  date  were all jointly with  Kanhaiya  Lal  and Mukand  Ram.   It  may be that  the  arbitrator  awarded  it jointly or they agreed to hold it on that basis.  We do  not know.  All we know is that they mortgaged it jointly. 35 Behrampur fell to Mukand Ram’s share and in the mortgage  of the  property  in 1918 Har Devi joined with Mukand  Ram  and Murari Lal’s son Bhukan Saran in one case and with Pyare Lal in the other.  But except for the last two mortgages of 1918 the conduct of Har Devi and her sons for 39 years from  1877 to 1916 as disclosed in these deeds is only consistent  with the  family arrangement which the defendants allege, for  on no other hypothesis could either the mother or the sons have laid claim to an absolute estate. We  will  next  turn to Durga Devi.  She died  in  1888  but before  she  died she mortgaged Keshopur  Bhindi  which  had fallen  to her share on 3-3-1887 by Ex.  U-1 (C. A. 93)  and claimed to be the owner. Then  there is Maha Devi.  The only direct evidence we  have of her conduct is a written statement that she filed in O.S. 177/97,  Ex. 2BI (C.A. 91).  She asserted there on  5-1-1898 that  she had been in proprietary possession and  occupation of  her divided share of the property obtained by  her  from her mother under a deed of will.  The circumstances in which she  made this statement are to be found in the judgment  in that  suit,  Ex.  GI (C.A. 91).  The suit was  by  Har  Devi against  her  sister  and a  transferee  who  claimed  title through the other sister Durga Devi.  Har Devi’s  allegation was  that  Durga  Devi had  mortgaged  Keshopur  Bhindi  and Tatarpore  Ghosi on 3-3-87.  The mortgagee sued on his  deed and obtained a decree for sale.  In execution of the  decree he purchased the properties himself Durga Devi died in  1888 and  Har  Devi claimed that Durga Devi had  only  a  limited estate and that Maha Devi and herself were entitled -to  the properties  by survivorship.  Maha Devi refused  to  support her sister and took up the position that each sister, or  at any rate that she, Maha Devi, got an absolute estate in  the property  that  came to her and of which she was  placed  in separate  possession,  from  Pato.  On  16-12-10  Maha  Devi mortgaged  Behrampur Buzurg and claimed that it belonged  to her,  being property left to her by her mother in  which  no one else had any rights.  The deed 36 is  Ex.   BB-1 (C.A. 93).  On 2-7-11 she sold  Bilalpat  and claimed to be its exclusive proprietor, Ex.  R-1 (C.A. 93). We now come to two statements made by Har Devi and Maha Devi as  witnesses in that suit.  Strong exception was  taken  to their admissibility because the plaintiff was not a party to the  earlier  litigation.  It is a moot point  whether  they would be admissible under section 32(3) of the Evidence Act, but we need not decide that because we do not intend to  use them as proof of the truth of the facts stated in them.  But they  are,  in our view, admissible to show the  conduct  of these two ladies.  The conduct of the various members of the family  is relevant to show that their actings, viewed as  a whole,  suggest the existence of the family  arrangement  on which the defendants rely.  At this distance of time gaps in evidence that would otherwise be available have to be filled in  from  inferences  that would normally  have  little  but corroborative   value.    But  circumstanced  as   we   are, inferences  from the conduct of the family is all  that  can reasonably  be expected in proof of an arrangement  said  to have  been made in 1875.  The statements that Har  Devi  and Maha  Devi  made as witnesses are therefore as  relevant  as



recitals  made by them in deeds and statements made by  them in  pleadings.  They do not in themselves prove the fact  in issue,  namely  the  family  arrangement,  because,  in  the absence  of section 32(3), they are not admissible for  that purpose,  but as their conduct is relevant these  statements are admissible as evidence of that conduct. Maha  Devi’s statement is Ex. 2-Al (C.A. 91) and Har  Devi’s Ex.  2-Fl (C.A. 91).  Both speak of an arrangement  effected by  Pato  in her life time and say that  they  entered  into separate  possession  of the properties by  reason  of  that arrangement.   Har Devi says in addition that the  grandsons were  included in the arrangement and given properties  too. Therefore,  we know that this is the title under which  each claimed  to hold in O.S. No. 177/97.  It is proof  of  their assertion of this title at that early date and though it  is no proof of the truth of those assertions it is proof of the 37 fact  that the assertions were made and that is all we  need at the moment. We  turn next to the conduct of the grandsons, and first  we will  consider  the  plaintiff Mukand Ram  and  his  brother Kanhaiya  Lal.  The plaintiff attained majority in 1890  and from  that date down to 1922 we have a series of  assertions of a title that can only spring from the family arrangement. First,  we  have the deed of 11-2-90, Ex.   RR-1  (C.A.  94) which  we  have already considered in  connection  with  Har Devi.  This is the agreement between his brother and himself on  the  one hand and Har Devi on the other to  refer  their dispute  to arbitration.  We have already commented  on  the fact  that  the two brothers asserted an absolute  title  to properties  that were in their possession  and  acknowledged the  absolute  title  of  Pyare Lal and  Shyam  Lal  to  the properties  of which they were possessed.  The only  dispute they  were prepared to submit to arbitration was  about  the properties  in  Har Devi’s possession and there,  they  were prepared to accept a decision upholding Har Devi’s claim  to an absolute estate. After this came the following dealings: 20-11-91  Sale Shahzadi  Proprietary pos- Ex. 2 K1 (C.A. 91)                Sarai     session "devolved                          on us by right of                          inheritance from                          Pato ". 28-7-93   Sale Dugawatr  Proprietary pos- Ex. 2 El (C.A. 91)                          session "by right                          of inheritance". 2-7-96    Mortgage    Qutabpur " ancestral and Ex. KK-1(C.A.                       Amawti                         94)                                   purchased by                                  us": Possessed                                   by us....without                                 the participation of anybody                                 else". 30-1-00   Sale Bazar Mah- " Proprietary pos-Ex. U (C.A. 92)                mud Khan  session" by "right                Sarai, Sam-of inheritance":                bhal          " without the par-                               ticipation of anyone else." 15-7-05   MortgageQutabpur   Owners:withHarEx.BB-1(C.A.94)                      Amawti    Devi "without the                                participation     of                                anyone else". 38 Kanhaiya Lal died about this time and thereafter Mukand  Ram continued  to  make transfers claiming to do so in  his  own



right.  He made the following along with Har Devi.  We  have already analysed them.  They were-      19-11-08  Ex.MI (C.A.94)      14-11-14  Ex.V  (C.A.92)      23-3-    15    Ex.X(C A.92)      17-2-    16    Ex.N-1(C.A.94)      28-3-    16    EX.MM1(C.A.94)      22-1-    18    Ex-DDD1(C.A.91)      23-3-    18    Ex.M1(C.A.91) But in addition to these he made the following transfers  on his own: 18-2-16  Sale Lashkarpur  Absolute owner.  Ex.   PP-1  (C.A. 94) 24-4-22   Sale Houses, etc.        do     Ex. Y   (C.A. 92)                in Sambhal 23-11-22  Sale Qutabpur Amawti     do     Ex. Q   (C.A. 92) Next,  we  come  to  Shyam Lal.   His  alienations  were  as follows: 19-6-97   Mortgage. Shops in Sanbhal. Owner.Ex. W-1(C.A. 94) 9-11-07   do House in Sambhal. No recital Ex. TT-1(C.A. 94) 17-9-09    do Bilalpat.         do    Ex. UU-1 (C.  A. 94)  In  addition, he made the following transfers jointly  with his brother Pyare Lal: 18-1-06 Mortgage. Bilalpat & shops  No recitals.  Ex. EEE-1                   in Sambhal.                    (C.A.94) 21-2-10   do    Bilalpat & Sabz.   do   Ex. AA-1(C.A 94) Pyare  Lal also made two transfers on his own- 23-9-18 Sale   Bilalpat."Devolved on     Ex. 15(C.A. 94)                me"from Nanak Chand                by right of inheritance. 2-1-20      do     do              do  Ex. 18  (C. A. 93) Lastly,   there  is  Bhukban  Saran,  who  is  Maha   Devi’s daughter’s son.  He transferred as follows: 26-3-18   SaleHouses, etc.in  Absoluteand                Sambhal.         exclusive Ex. MM-1 (C.A.92)                                  owner. 9-1-21    Relinquish- Bilalpat   do    Ex. DD-1 (C.A. 93)            ment. These documents disclose a long line of conduct on the  part of the various members of the family and show that from 1877 down  to 1922 each dealt with the properties in his  or  her possession as absolute 39 owner  and  set  up  exclusive  proprietary  title  to   the properties transferred.  It is true the source of title  was not  consistently stated, sometimes it was said to  be  Pato and at others Nanak Chand, but the assertion to a  separate, exclusive and absolute title in each is common all  through. There  is  only one way in which they could have  got  these exclusive  titles and that is by a family  arrangement,  for whether  the  property was Nanak Chand’s or whether  it  was Pato’s, in neither event could any one of these persons have obtained  an absolute estate on the dates with which we  are concerned:  the  grandsons, because the  reversion  had  not opened  out; the daughters because, either way,  they  would only  be limited owners under the Hindu law.  But  if  there was  a family arrangement assented to by the  daughters  and later  accepted and acted on by the sons when they  attained majority,  their claim to separate and independent  absolute titles  is understandable.  It does not matter  whether  the claims  were  well  founded  in  law  because  what  we  are considering  at  the moment is not the legal effect  of  the arrangement but whether there was one in fact. Now, in spite of all these dealings, the conduct of Har Devi and  Mukand Ram and Kanhaiya Lal was not always  consistent.



They were greedy and while insisting that they be allowed to hold on to what they had got, they wanted to snatch more  if and  when they could.  The ball started rolling in  1890  as soon  as  Mukand  Ram  attained  majority.   There  was  the reference  to  arbitration  in that  year  to  settle  their dispute  with their mother Har Devi.  But even there,  there was  the  inconsistency regarding their  own  properties  to which   we  have  already  referred.   Mukand  Ram’s   later explanation   in  the  witness  box  that  they  got   those properties for shradh purposes and for a pilgrimage to  Gaya cannot be believed. Next,  there  was the suit by Mukand Ram  and  Kanhaiya  Lal against their aunt Maha Devi in 1895: S. No. 21/1895, Ex. 31 (C.A. 91).  That was occasioned by two sales by Maha Devi on 19-2-83 and 20-5-85.  She stoutly maintained that she had an absolute title. 40 The  litigation  had a chequered career and  ultimately  the suit was dismissed as barred by time. Next came suit No. 177 of 1897, Ex.  GI (C.A. 91), in  which Har Devi sued Maha Devi and a transferee.  This time it  was to  set aside an alienation by Durga Devi, Durga  Devi  then being  dead.  Har Devi claimed that the property  was  Nanak Chand’s  and  that the daughters were limited  owners.   But again Maha Devi stood by the family arrangement and asserted an  absolute title in all the daughters; Ex. 2BI (C.A.  91). We have seen that Har Devi entered the box and admitted  the arrangement:  Ex. 2F-1 (C.A. 91).  The suit  very  naturally failed,  but  the result of the litigation is  not  relevant because  the  plaintiff  was  not  a  party.   What  we  are examining is the conduct of Har Devi. In  1913 Har Devi tried again after Maha Devi’s death,  this time against alienees from Maha Devi.  This is the suit that went  up  to  the Privy Council,  Mst.   Hardei  v.  Bhagwan Singh(1).  She failed again’. Having failed against Maha Devi in the 1897 litigation,  Har Devi  next  tried  her luck  against  Maha  Devi’s  grandson (daughter’s  son)  Bhukhan Saran, after Maha  Devi’s  death. The  suit  is O.S. 52/14, Ex. 78 (C.A. 94).  This  time  she succeeded  with respect to some items and failed as  regards the rest.  But again the result is irrelevant: Exs. 6 and  8 (C.  A. 94). Now  what  we are examining at the moment is  whether  Shyam Lal, D. W. I in CA. 94, is to be believed when he says  that Mukand  Ram,  among  others,  told  him  about  the   family arrangement  tinder which Pato had divided all her  property between  her daughters and their sons.  It is  evident  from what   we  have  said  above  that  Mukand  Ram   had   been consistently  asserting such a title for 31 years from  1891 to 1922 despite his aberrations in 1890 and 1895.  In parti- cular  he did this whenever he wanted to borrow money or  to sell  property: and he makes a significant admission in  the witness box as P. W. 11 in C. A. 91 that- (1)  A.I.R. 1919 P.C. 27. 41 "In  the  mortgage or sale of the property over  which  Mst. Har  Devi was in possession none of her sisters or  sisters’ sons  joined.   Similarly, in the sale or  transfer  of  the property  that  came to Durga Devi, none of her  sisters  or other sisters’ sons joined". He  also  admits  that there was  a  division  and  separate possession  from 1876.  He says that it was for  convenience of  management and says that it was after Pato’s death,  but in view of the mass of evidence that we have just  analysed, we think it far more likely that he told Shyam Lal just what



Shyam  Lal says he did.  After all, he was  borrowing  money from Shyam Lal on each of these occasions; so there is every reason to believe that he would have told Shyam Lal what  he had  so  repeatedly asserted to his other  transferees.   We accordingly believe Shyam Lal. That  at once shifts the burden of proof to  the  plaintiff, and  what  is  his explanation?  First, a  division  of  the estate  for  convenience of management (but  that  does  not explain  the  long chain of unchallenged transfers  bar  Har Devi’s  efforts  in  four  cases);  and  second,  that   the grandsons got property absolutely for the purposes of shradh and  pilgrimage: ’an explanation which we  disbelieve).   We are  therefore left with the plaintiff’s admission to  Shyam Lal and that admission, coupled with the conduct and actings of  the family, firmly establishes the  family  arrangement. We  accordingly hold that, whether the property belonged  to Pato or to Nanak Chand, Pato claimed an absolute right which the  daughters  acknowledged, and in return they  and  their sons  were given separate and absolute estates  in  separate portions of the property immediately. This  arrangement  bound  the daughters  because  they  were parties  to it and received good consideration.  But so  far as the sons are concerned, they were minors at that time and were  not parties to this arrangement, for no  one  suggests that they were represented by guardians who entered into  it on  their behalf.  Therefore, the properties  they  received were, so far as they are concerned, gifts pure and simple 6 42 from  Pato  with the assent of her daughters.  It  does  not matter   whether  the  properties  were   Pato’s   exclusive properties  or  whether they came to her  from  her  husband because, either way, the title to the properties resided  in her  and she was the only person competent to pass it on  to another.   If her title was absolute, the sons got  absolute estates.  If it was the limited title of a Hindu widow, they obtained  a limited title good during her life, and, as  the daughters consented to the gifts and obtained properties for themselves  as a result of the arrangement that resulted  in these  gifts,  they would not be permitted to  question  the gifts;  and  the Privy  Council so held in Har  Devi’s  suit against the alienees from Maha Devi: Mst.  Hardei v. Bhagwan Singh(1).   But so far as the grandsons are  concerned,  the mere,’ fact that each received a separate gift from Pato  at a time when they were not competent to assent or to  dissent would  not  in itself bind them.  To  achieve  that  result, there  would  have to be something more; and it is  to  that something more that we will now direct our attention. But  before  doing that, we will pause to  distinguish  Rani Mewa  Kuwar.   Rani Hulas Kuwar (2); Khunni  Lal  v.  Gobind Krishna  Narain  (3), and Ramsumran Prasad v.  Shyam  Kumari (4).   It  is  well  settled that  a  compromise  or  family arrangement  is  based on the assumption that  there  is  an antecedent  title  of  some  sort in  the  parties  and  the agreement acknowledges and defines what that title is,  each party  relinquishing all claims to property other than  that falling  to  his  share and recognising  the  right  of  the others, as they had previously asserted it, to the  portions allotted  to them respectively.  That explains why  no  con- veyance  is required in these cases to pass the  title  from the one in whom it resides to the person receiving it  under the  family  arrangement.   It is  assumed  that  the  title claimed  by  the  person receiving the  property  under  the arrangement  had always resided in him or her so far as  the property  falling  to  his or her  share  is  concerned  and therefore no conveyance is



(1)  A.I.R. 1919 P.C. 27. (2)  [1874] 1 I.A. 157, 166. (3)  [1911] 38 I A. 87, 102. (4)  [1922] 19 I. A. 342, 348. 43 necessary   But, in our opinion, the principle can be carried further  and  so strongly do the Courts lean  in  favour  of family arrangements that bring about harmony in a family and do   justice   to  its  various  members   and   avoid,   in anticipation,  future  disputes which might ruin  them  all, that  we have no hesitation in taking the next  step  (fraud apart)  and upholding an arrangement under which one set  of members abandons all claim to all title and interest in  all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one  of their  number (provided he or she had claimed the whole  and made  such  an assertion of title) and are content  to  take such  properties  as are assigned to their shares  as  gifts pure  and  simple from him or her, or as  a  conveyance  for consideration when consideration is present. The  regal  position  in such a case  would  be  this.   The arrangement or compromise would set out and define that  the title claimed by A to all the properties in dispute was  his absolute  title as claimed and asserted by him and  that  it had always resided in him.  Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z; and thereafter B, C and D would  hold their respective titles under the title derived from A.  But in  that event, the formalities of law about the passing  of title by transfer would have to be observed, and now  either registration  or  twelve years adverse possession  would  be necessary.  But in the present case, we are dealing with  an arrangement  made  in 1875 at a time when  the  Transfer  of Property  Act was not in force and no writing was  required; an d, as there is no writing, the Registration Act does  not apply either.  Therefore, the oral arrangement of 1875 would be  sufficient  to pass title in this way and that,  in  our opinion, is what happened. But these rules only apply to the parties to the  settlement and  to those who claim through or under them.  They  cannot be  applied  to the minor sons who were not  parties  either personally  or through their guardians and who do not  claim title’ either through 44 Pato  or her daughters.  So far as they are concerned,  what they received were gifts pure and simple and the only assent that could be inferred from mere acceptance of the gift  and nothing more would be assent to that particular gift and not assent  to the gifts similarly made to others; and for  this reason. When  Mukand  Ram  attained majority he had  two  titles  to choose from.  One from Pato as a limited owner coupled  with the  assent  of the daughters to her gift to him.   In  that case,  he  would hold a limited estate  till  the  reversion opened out.  The gift would be good during Pato’s life  time because  she had that title to convey, and thereafter,  till the  three daughters died, because they assented to  it  and obtained  considerable  benefit  for  themselves  from   the transaction out of which it arose.  The other title would be an  absolute  one on the basis that Pato  was  the  absolute owner of the properties.  That title could only be referable to  the family arrangement, and if Mukand Ram,  knowing  the facts, assented to the arrangement ex post facto, he will be precluded from challenging it for reasons which we shall now explain.



If   the  properties  were  Nanak  Chand’s,  which  is   the assumption on which we are deciding this case, then Pato was a  limited  owner  under  the Hindu law,  but  as  such  she represented  the estate and any title she conveyed,  whether by  gift or otherwise, would not be void; it would  only  be voidable.  It would be good as against all the world  except the reversioner who succeeded when the reversion opened  out and he is the only person who would have the right to  avoid it; and it would continue to be good until he chose to avoid it. Therefore, if he does not avoid it, or is precluded from doing so, either because of the law of limitation or by  his own  conduct, or for any other reason, then no one else  can challenge  it;  and the law is that once a  reversioner  has given  his assent to an alienation, whether at the time,  or as  a  part of the transaction, or later as a  distinct  and separate  act,  he is bound though others may  not  be,  and having  given  his  assent he cannot go back on  it  to  the detriment of other persons; all the more so when he  himself receives 45 benefit:see Raja Modhu Sudan Singh v. Rooke(1); Bijoy  Gopal v. Krishna(1), and Ramgouda Annagouda v. Bhausaheb(3).  Lord Sinha,  delivering the judgment of the Privy Council in  the last of these three cases, said at page 402:- "It  is settled law that an alienation by a widow in  excess of  her powers is not altogether void but only  voidable  by the  reversioners,  who may either singly or as  a  body  be precluded from exercising their right to avoid it either  by express  ratification or by acts which treat it as valid  or binding". This was followed in Dhiyan Singh v. Jugal Kishore(4) though the  ground  of  that decision was  estoppel.   We  are  now founding  on  another  principle which is  not  grounded  on estoppel and which, indeed, is not peculiar to Hindu law. Estoppel  is  rule of evidence which prevents a  party  from alleging  and proving the truth.  Here the plaintiff is  not shut  out from asserting anything.  We are assuming  in  his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement.  The principle we are applying is therefore not estoppel.  It is a rule underlying many branches of the  law which  precludes  a person who’ with full knowledge  of  his rights, has once elected to assent to a transaction voidable at  his  instance and has thus elected not to  exercise  his right  to avoid it, from going back on that and avoiding  it at  a later stage.  Having made his election he is bound  by it. So far as the Hindu law is concerned, Lord Dunedin explained in  Rangaswami  Gounden v. Nachiappa Gounden(5), a  case  in which  a widow gifted properties to her nephew, that  though the reversioner is not called upon to exercise his right  to avoid  until the reversion falls in and so no assent can  be inferred from mere inaction prior to the death or deaths  of the limited owner or owners, he is not bound to wait and     "of course something might be done even before (1) [1897] 24 I.A. 164, 169.      (2) [1906] 34 I.A. 87. (3) [1927] 54 I.A. 396.           (4) 1952 S.C.R. 478, 488. (5) [1918] 46 I.A. 72, 86,87. 46 that  time which amounted to an actual election to hold  the deed good". Ramgouda  case(1) is an illustration of what that  something can  be,  for  there the assent was given  by  the  ultimate reversioner  before he became in titulo to alienations by  a widow, one of which was a gift.  The present case is another



illustration.   For the reasons we have given and  which  we shall  now further examine, we hold that the plaintiff,  who is  in  titulo  now  that the  succession  has  opened  out, unequivocally   assented  to  the  arrangement   with   full knowledge  of  the  facts and  accepted  benefit  under  it, therefore,  be  is now precluded from avoiding it,  and  any attempts he made to go behind that assent when it suited his purpose  cannot render the assent once given  nugatory  even though  it  was  given when he was not in  titulo  and  even though the assent was to a series of gifts. The  real question is whether the plaintiff assented to  the family arrangement, and as the plaintiff was not a party  to the  arrangement his assent to the arrangement  itself,  and not to something else, must be clearly established, and also his  knowledge of the facts.  But we think they  have  been. In the first place, there was the express assent in 1890  to the gifts made to the other grandsons on the basis that each grandson  got an absolute estate.  Next, there was the  long course  of dealings by Kanhaiya Lal and Mukand Ram in  which they  asserted absolute titles.  Mukand Ram tells us in  the witness  box as P.W. 11 (C.A. 91) that Kanhaiya Lal was  the karta  of  the joint family to which  Mukand  Ram  belonged, therefore Kanhaiya Lal’s dealings with the properties  which he  and his brother held under a joint and  undivided  title are also relevant as they will bind Mukand Ram.  And lastly, there is Mukand Ram’s representation to Shyam Lal (D.W. I in C.A.  94) which leaves us in no doubt about  his  knowledge. The  cumulative effect of this course of conduct leads to  a reasonable  inference that Kanhaiya Lal and Mukand Ram  were holding, not on the basis of a separate and individual  gift made by a life owner with the assent of the next set of life 1)   [1927] 51 I.A. 396, 402. 47 owners, but on the basis of the family arrangement which was one composite whole in which the several dispositions formed parts of the same transaction under which Mukand Ram himself acquired a part of the estate: see Ramgouda v. Bhausaheb(1). We  are therefore satisfied that the plaintiff’s assent  was to this very arrangement. and that concludes both cases. In  C.  A. 94/50 there is, in addition,  a  direct  personal estoppel  against  the plaintiff.  The  transfers  that  are challenged  there are sales of 23-9-18 and 25-11-19 made  by two  of the grandsons, one personally and the other  by  the guardian,  but  the relevant dates for the purposes  of  the estoppel  are later because the representation in this  case was  not made to the immediate transferees but to the  first defendant  who obtained title to the properties at  a  later date,  in one case by a sale from the immediate  transferee, in  the  other by pre-emption.  But the exact dates  do  not matter because the representation to the first defendant was made in 1910 before the first defendant’s purchases.  It was made  by Kanhaiya Lal and Mukand Ram as as well as by  other members  of  the family.  We have already  referred  to  the first  defendant’s evidence.  This case would  therefore  be governed  by Dhiyan Singh v. Jugal Kishore(2) in any  event. But we need not elaborate this further because of the  other principle which, in our opinion, is sufficient to dispose of both the present cases. The result is that both appeals are allowed.  The decrees of the  High Court -are set aside and those of the first  Court dismissing  the  plaintiff’s claims in those  suits  out  of which  Civil Appeals 92 and 94 of 1950 arise  are  restored. Costs  here  and  in the High.  Court will be  paid  by  the plaintiff-respondent but there will be only one set of costs and they will be divided half and half between the two  sets



of appellants.                      Appeals allowed. (1)  [1927] 54 I.A. 396, 402. (2)  1952 S.C.R. 478. 48