SHINGHAL, J.—This second appeal arises from the appellate judgment of the learned Senior Civil Judge, Jaipur District, dated April 25, 1959 upholding the trial courts decree dated April 9, 1958 in the plaintiffs favour.

2. The property which is the subject matter of dispute is situated in village Chitanu, Tehsil Jamwa Ramgarh, in the district of Jaipur. It was part of the property held by Ramchandra, the common ancestor of the parties whose relationship would appear from the following pedigree—

Ramchandra

Laxmi Naraind.s. 2003-4 Ram Sahaid.s. 2012 Sheo Nath d.s. 1974Smt. Suudari d. s. 2010

Bhagwan Sahai (defendant)

Sualal (plaintiff) Murlidhar (plaintiff)

After Ramchandras death, his three sons Laxmi Narain, Ram Sahai and Sheo Nath divided his property into three equal shares in Smt. 1970. each of them taking possession of his one-third share. Sheo Nath died in Smt. 1974 leaving behind his widow Smt. Sundari who succeeded to her widows estate. All the same, a dispute arose between Laxmi Narain and Ram Sahai in regard to Sheo Naths property and they drew up agreement Ex. A. 1 on Jeth Badi 12, Smt. 1975, to settle it amicably. This did not however end the dispute and the agreement was rescinded and replaced by a new agreement Ex. A. 2 dated Asoj Badi 15, Smt. 1984 (1927 A. D.). Both Laxmi Narain and Ram Sahai signed that agreement. According to it, Smt. Sundari was allowed to hold the one-third share of her husband Sheo Nath for her life-time and it was agreed between the brothers that they would divide it equally after her death. Laxmi Narain died in Smt. 2003-4 and Smt. Sundari in Smt. 2010, the exact date of her death being January 10, 1954. Thus far, the facts are not in dispute in this Court. According to the plaintiffs, their father Ram Sahai inherited Sheo Naths property as he survived his widow Smt. Sundari and was his nearest heir when the succession opened on her death. Ram Sahai died on Mah Badi 6, Smt. 2012, corresponding to 17, February 1956. The version of the plaintiffs is that the defendant then took forcible and wrongful possession of Sheo Naths property mentioned in paragraph 6(A) 3 and 6(A)(4) of the plaint and this gave rise to the present suit which was instituted on March 11,1957, for possession of the aforesaid property and for a declaration that the plaintiffs were the owners of Sheo Naths entire property. There was also a claim for mesne profits. According to the defendant, on the other hand, he and his uncle Ram Sahai took over joint possession of Sheo Naths property on the death of his widow and it was agreed between them that they would divide it equally after performing her funeral feast. Ram Sahai died before the feast could be performed and his sons and the defendant took possession of their respective shares in Sheo Naths property. So the difference between the two versions is that while the plaintiffs contend that their father Ram Sahai succeeded to the property of Sheo Nath on the death of his widow and was in possession when the defendant took over forcible and wrongful possession of a part of that property, the defendants version is that the property was divided by mutual consent.

3. The Munsiff, Jaipur District, tried the suit. He found, inter aila, that the defendant had not taken forcible possession of the two properties just referred but that agreement Ex. A. 2 of Asoj Badi 13, Smt. 1984 was void as it was in contravention of sec. 6 of the Transfer of Property Act and the plaintiffs were entitled to succeed in their claim for a declaration of their title and possession. He did not however allow the claim for mesne profits. Against that judgment and decree, the defendant preferred his first appeal which was dismissed by the impugned judgment of the learned Senior Civil Judge. Before him, only the trial courts finding on issue No. 5, which related to the validity of agreements Ex.A. 1 and Ex. A. 2. was challenged and the learned Judge upheld the trial courts view. He disallowed the argument

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