Judgement

Appeal (No. 6 of 1923) from a decree of the Court of the Judicial Commissioner (April 25, 1916) reversing a decree of the Subordinate Judge of Fyzabad.

The suit was brought by the appellants claiming against the defendants possession, with mesne profits, of a share in a village in Oudh. The first respondent, the only defendant who contested the suit, pleaded by her written statement that under a deed of compromise dated May 27, 1878, she was lawfully in possession as an under-proprietor; further, that the plaintiffs were estopped from denying that she had an under-proprietors rights.

The facts are stated in the judgment of the Judicial Committee.

The Subordinate Judge made a decree for possession, but without mesne profits.

Upon appeal to the Court of the Judicial Commissioner the decree was reversed, it being held that the plaintiffs having received rent were estopped from denying that the first defendant had an under-proprietors right, and that the plaintiffs had waived their rights.

1924. June 20. De Gruyther K.C. and E. B. Raikes for the appellants.

Dube for the first respondent.

In addition to the case mentioned in the judgment reference was made to Beni Pershad Koeri v. Dudh Nath Roy. (( 1899) L. R. 20 I. A. 216.)

July 1. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a decree dated March 10, 1919, of the Court of the Judicial Commissioner of Oudh, which reversed the decree dated April 25, 1916, of the Subordinate Judge of Fyzabad.

The appellants are the plaintiffs in a suit for possession of certain villages. They also claimed mesne profits, a claim which was rightly disallowed and of which no more need be said. What remains is the suit for possession itself. Both the Courts before whom the suit came in India held that the plaintiffs title to the villages was proved. Their Lordships are in entire agreement with that conclusion.

The trial judge decreed the suit for possession. The appellate Court dismissed it on the ground that the appellants were estopped from denying all claim of the first respondent to hold the villages for life as an under-proprietor without power of alienation. The only question in the appeal is whether the appellants suit fails by reason of this alleged estoppel. In the opinion of the Board it does not so fail, and the appellants are not estopped.

The villages are in the Fyzabad district and were the absolute property of one Dhup Narain Singh. He was the owner of the taluq which embraced them. On his death his wife, Rajau Kuar, claimed to be in possession of these villages as pukhtadar. Had she been so she would have been an under-proprietor with a right both heritable and transferable. In May, 1878, this question having been raised in Court, was settled by a compromise ; and it is to the terms of that compromise that both parties refer. These terms are as follows " In the case noted above I, the plaintiff, have claimed an under-proprietary right in 10-biswas share in village Mendhi Salimpur. We, the parties, have agreed to these terms, that in village Mendhi Salimpur I, the plaintiff, shall remain in possession of the defendants share as under-proprietor during my life-time without the power of transfer and sale ; that after my (the plaintiffs) death the wife of Babu Kalka Bakhsh Singh, my son, shall also enter into possession without the power of alienation and sale and any person other shall have nothing to do with it; that I shall continue to pay the Government land revenue and 15 per cent, the profits to the taluqdar defendant."

Rajau Kuar had possession of the villages under the agreement of May, 1878, till her death in 1901, when her rights of course came to an end. Musammat Sunder Kuar, the wife of Kalka Bakhsh Singh, under the terms of the agreement of compromise thereafter possessed the villages, but her rights ceased with her death in 1905.

As the Judicial Commissioner properly observes in his judgment " Kalka Bakhsh Singh is n