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IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu and D. N. Roy, JJ.
RAM CHARAN DAS - Appellant
Versus
MST.GIRJANANDANI DEVI - Respondents
First Appeal 392 Of 1944
Decided On : 09/23/1958
SURRENDER - Widow - Validity - Widow surrendering estate to nearest reversioner and remote reversioners - Surrender invalid - FAMILY SETTLEMENT - Validity - No dispute or competing title so far as widow is concerned - Settlement for preservation of peace of family - Valid - COURT OF WARDS ACT (U. P.) (4 OF 1912), S. 37 (A) - Family settlement not hit by.
Fact of the Case:
Suit by plaintiff, reversioner of Kanhaiya Lal, for possession of suit property on the death of Kadma Kuer, widow of Kanhaiya Lal. Kadma Kuer had executed a deed of partition in 1933 surrendering her estate in favour of Gopi Nath, the then reversioner, and the plaintiff and his brothers, the remote reversioners. The plaintiff contended that the deed was void as it was not a surrender, nor a family settlement and that he was not bound by the deed as Kadma Kuer was under a disability, being a ward of the Court of Wards. The defendants contended that there was an effective surrender by Kadma Kuer in favour of Gopi Nath who was the then reversioner and that, in any case, the deed was good as a family settlement and that the plaintiff was estopped because of the deed from raising the present claim. The court below found that there was a surrender by Kadma Kuer affected by the deed of 1933 and the surrender made by Kadma Kuer was a perfectly valid surrender under the Hindu Law and that Gopi Nath thereby became the owner of the estate and that Gopi Nath also was bound by that deed as a family arrangement. The court below also held that the deed is good as a family settlement and is binding also on the plaintiff and his brothers. It further held that the deed is not hit by Section 37 of the Court of Wards Act, because whether it is a surrender or a family settlement, there is no transfer of property effected by it. It also found by the court below that the plaintiff not having asked for a cancellation of the decree based on the compromise deed, that decree bars the plaintiff's present claim.
Finding of the Court:
The court held that the deed of 1933 was not a valid surrender as the widow had surrendered the estate to both the nearest reversioner and the remote reversioners. However, the court held that the deed of 1933 operated as an effective family settlement by which the plaintiff was bound. Further, the court held that the plaintiff was bound by the decree passed in Suit No. 54 of 1932 on the basis of the compromise and, he not having prayed for the setting aside of the decree, the decree operated to bar his present claim also.
Issues: 1. Whether the deed of 1933 was a valid surrender? 2. Whether the deed of 1933 was a valid family settlement? 3. Whether the deed of 1933 was hit by Section 37 (A) of the U. P. Court of Wards Act?
Ratio Decidendi: 1. A surrender by a widow must be in favour of the nearest reversioner only and not in favour of both the nearest reversioner and the remote reversioners. Therefore, the deed of 1933 was not a valid surrender. 2. A family settlement is a transaction between members of the same family which is for the benefit of the family generally, as, for example, one which tends to the preservation of the family property, to the peace and security of the family and the avoiding of family disputes and litigation or to the saving of the honour of the family. In this case, the deed of 1933 was entered into to preserve the peace of the family and to avoid disputes and litigation. Therefore, the deed of 1933 was a valid family settlement. 3. A family settlement is not hit by Section 37 (A) of the U. P. Court of Wards Act, because a family settlement does not involve any sort of transfer.
Final Decision: Appeal dismissed.
( 1 ) THE substantial question in this appeal is as to the legal effect of a deed, described as a deed of partition, dated 31-3-1933. That deed concerns property of which the last male owner was one kanhaiya Lal who died on 10-6-1922. He got the property from his grandfather, Chunni Lal, under a will of 1883. He was succeeded by his mother Smt. Kadma Kuer, who died on 14-10-1937. Upon her death the present suit was filed by the plaintiff on, the allegation that he is the next reversioner of Kanhaiya Lal along with his brothers, defendants 2 to 6, and that defendant No. 1 Smt. Girjnandani Devi, widow of Gopi Nath, who was a sisters son of Kanhaiya lal, had no right to remain in possession of the suit property. Gopi Nath died during the life-time of Smt. Kadma Kuer 13.
( 2 ) ACCORDING to the plaintiff, he is not bound by the deed dated 31-3-1933, described as a partition deed and he contends that it is of no legal effect.
( 3 ) BEFORE stating the defence, we may relate how this deed came into existence.
( 4 ) WHEN Kadma Kuer entered into possession of the estate of Kanhaiya Lal upon his death, she applied to the Court of Wards under Section 10 of the Court of Wards Act to take over management of the estate and the Court of Wards took over management. Kadma Kuer had entered into possession not only of the property which is claimed in the present suit but also of other property of which Kanhaiya Lal was in possession and all such property had been taken over by the Count of Wards. It appears that Kanhaiya Lal had a brother Madho Prasad, who had predeceased Kanhaiya Lal, upon his death, Kanhaiya Lal was holding Madho Prasads share of the property by survivorship. Maheshwari Bibi, the widow of Madho Prasad, made a claim to the Court of Wards that Madho prasad and Kanhaiya Lal did not hold as joint tenants but had a tenancy-in-common conferred on them by Chunni Lal, their grandfather, by his will dated 27-2-1883. The Count of Wards investigated this claim of Maheshwari Bibi and, Kadma Kuer agreeing, released half of the estate to Smt. Maheshwari, Bib. On this, throe suits were filed, namely (1) suit No. 30 of 3932. This was by Copi Nath who claimed to be the next reversioner upon the ground that he being the sisters son of Kanhaiya Lal had become an heir preferential to the present plaintiff and his brother, because of the passing of the Hindu Law of Inheritance (Amendment) Act of 1929. This suit was against Maheshwari Bibi, Kadma Kuer and the Court of Wards and was based on the allegation aforesaid. e. , that he was the next reversioner and a statutory heir and he sought a declaration that the Court of Wards had no right to release half the share of the property taken over by Kadma Kuer from Kanhaiya Lal in favour of Ma-heshwari Bib. It appears that Sehat bahadur, one of the brothers, who fs defendant No. 3 to the present action, made an application seeking permission to intervene in that suit. The suit was, however, withdrawn by Gopi Nath. This led to the institution of two other suits, namely Suit No. 53 of 1933 by the present plaintiff and the other No. 54 of 1932 by the present plaintiffs brother, namely Hanuman Prasad, who is defendant No. 6 in the present action. Both of them claimed to be the nearest rever-sioners alleging that the new Act did not affect the property and they sought a declaration that Maheshwari Bibi and Gopi Nath had we right of any kind as against the plaintiff regarding the property in those suits,. e. , the property of Kanhaiya lal. Gopi Nath was a party to both of these suits along with Mahcshwari Bibi, Kadma Kuer and the Court of Wards. It appears that in the course of these two suits, two compromises were drawn up under one of which the dispute with Maheshwari Bibi was settled. One of the compromises is dated 27-4-1933. The other compromise is dated 31-3-3933, of which the terms were embodied in the decree in Suit No. 53 of 1932, and is the document which is in controversy between the parties
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