Judgement

Appeal (No. 34 of 1930) from a decree of the Chief Court of Oudh dated October 18, 1928, reversing a decree of the Subordinate Judge of Lucknow dated January 7, 1928, as amended by an order of March 8, 1928.

The suit was brought on October 20, 1927, by the appellants, the son and daughter of Mohammad Husain, who died on March 4, 1912, against other members of the family, including Faiyaz-un-nisa, their mother, the second wife of the deceased. The plaintiffs claimed their share according to

Law. Rep. 59 Ind. App. 92 ( 1931- 1932) Mohammad Ejaz Husain V. Mohammad Iftikhar Husain

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Mahomedan law in scheduled properties which they alleged constituted the estate of their deceased father. They contended that they were not bound by an award made on April 2, 1912, upon a reference to arbitration under an agreement made on their behalf when minors by their mother Faiyaz-un-nisa.

The facts appear fully from the judgment of the Judicial Committee.

The Chief Court, reversing the Subordinate Judge, dismissed the suit. The learned judges (G. N. Misra and Srivastava JJ.) were of opinion that the award was not binding upon the plaintiffs as an award, but that as it had been fairly and properly made, and had been acted upon by all the family for fourteen years, the distribution so made constituted a family arrangement binding upon all parties.

1931. Nov. 13, 16. E. B. Raikes K.C. and Pennell for the appellants. There are concurrent findings that the ice factory, the item of property now in dispute, was not a gift inter vivos to defendant No. 4 as the award stated. Having regard to the judgment of the Board in Imambandi v. Mutsaddi (( 1918)

L. R. 45 I. A. 73.) the appellants mother was not competent in Mahomedan law to agree on their behalf to the reference to arbitration. The decision of the Calcutta High Court in Mohsiuddin Ahmed v.

K. Ahmed (( 1920) I. L. R. 47 C. 713.) is precisely in point and correct. The Chief Court erred in holding that even if the award was not binding upon the appellants the distribution made under it was binding as a family arrangement. A family arrangement derives its force from contract, express or implied, and the appellants mother was incompetent so to bind them. The cases relied on by the Chief Court were not cases of arrangements made or assented to by a Mahomedan mother on behalf of her minor children, but were either arrangements between members of a Hindu family, like Brijraj Singh v. Sheodan Singh (( 1913) L. R. 40 I. A. 161.), or cases of compromise by a Hindu woman in whom the estate was vested, like Ramsumran Prasad v. Shy am Kumari.(( 1922) L. R. 49 I. A. 342.) The fact that the mother was appointed guardian after the award was carried out did not validate the transaction in the absence of evidence that the Court knew of the agreement and approved it, nor could it confer on her power to assent to an invalid arrangement which had already been made. It was not proved that the first appellant ratified the distribution with knowledge of his rights.

Hyam and Pringle for the respondents, the heirs of defendant No.4. Even if the agreement to refer was invalid the distribution under the award, which was made fairly and without undue influence, and has been acted on without question for fourteen years, was binding upon all parties. The principle upon which a family arrangement made in settlement of disputes is binding upon the whole family is independent of the capacity of the parties to it provided that it is a bona fide arrangement Upendra Nath Bose v. Bindeshri Prosad (( 1915) 20 Cal. W. N. 210, 229(F. B.).); Keramatulla Meah v. Keramatulla Meah (( 1918) 23 Cal. W. N. 118.) ; Hasan Bibi v. Fazal Kadir.(( 1908) 10 Punjab L. R, 537.) That view accords with the judgment of the Board in Khunni Lal v. Gobind Krishna Narain (( 1911) L. R. 38 I. A. 87.) holding that an arrangement of this nature does not operate as a transfer of the property dealt with. The mother was appointed guardian in September, 191