Vivian Bose—The plaintiff sues four different sets of defendants for possession of four different sets of property. The decision of the first Court gave rise, to different appeals in the lower appellate Court, and the two appeals now before me arise out of them. This judgment will govern both, that is this appeal and Second Appeal No. 161-B of 1933. Defendant 5, Dattatraya, is the appellant in this appeal. He is concerned with Survey Nos. 149 and 154/2 of mouza Zadgaon. The plaintiff's title to the property is as follows : One Jageshwar originally owned all the property now in suit. He died in 1898 leaving a widow, Mt. Saraswatibai, who inherited in the ordinary way. She died in 1918 leaving one Gangaram, the adoptive father of the plaintiff, as the next reversioner. He was on bad terms with his adopted son, and was then challenging the adoption in a regular suit against the plaintiff. He lost, and that is no longer material except perhaps to explain his attitude in what followed. At the time of mutation in 1920, instead of claiming the inheritance, he expressly disclaimed it, and was content to allow mutation in the name of Radhabai, the daughter of a predeceased brother of Jageshwar. The following genealogical tree will explain the relationship between these persons :

2. The plaintiff claims that in consequence of this disclaimer the inheritance devolved on him and so he sued for possession. He also raises an alternative plea. Gangaram died on 23rd March 1928. So the plaintiff states that in any case he is either his heir or the reversioner to Jageshwar, and so is entitled to possession. Defendant 5, Dattatraya, is the contesting defendant so far as the property involved in this appeal is concerned. He raised a number of different pleas in the first Court, but has now confined his case to the one which relates to a family settlement. The lower appellate Court finds that this settlement has not been proved. This appeal hinges solely on that question, and if the lower appellate Court is right, the plaintiff must succeed. Defendant 5's pleading on the point is this: He states 'there was a dispute between Gangaram and Radhabai which was settled by Gangaram relinquishing his rights to Jageshwar's estate, while Radhabai on her part transferred a half-share in the two fields with which the other appeal is concerned to his wife, Mt. Laxmibai, by a sale-deed, Ex. (8 D-1), dated 28th May 1919. The settlement, according to him, was effected on this date. Three years later, on 9th March 1922, Radhabai sold the fields in dispute in this appeal to this defendant. The issue then is a simple one of fact : Has this settlement been proved ?

3. The learned pleader for this defendant, who is the appellant before me in this appeal, argues that this is really a mixed question of law and fact, and that while he is not challenging any of the facts found, he is entitled to challenge the inferences which the learned Judge has drawn from them. That, he contends, is a matter of law which he can urge in second appeal.

4. This argument is frequently raised in second appeals and is possible because no definite and uniform meaning seems to have been assigned to the word ''fact''. I respectfully agree with the Full Bench of the Allahabad High Court in 54 All 6, Municipal Board, Benares v. Kanhaiyalal, 1931 AIR(All) 499 at p. 8 that the word must bear the meaning given to it in S. 3, Evidence Act. ''Fact'' is defined there to mean and include:

(1). Any thing, state of things, or relation of things, capable of being perceived by the senses;

(2). any mental condition of which any person is conscious.

5. Now there can be no doubt that whether two persons agree on a certain matter is a thing which is capable of being perceived by the senses, and whether they had the requisite mental intention necessary to give legal validity to their outward forms or acts of agreement is a mental condition of which a person can be conscious. It follows that any finding on a ma