JUDGMENT

Srivastava, J - This is an appeal by the plaintiff against the decree dated 23rd May 1931 of the learned Subordinate Judge of Gonda, dismissing the plaintiff's suit. The admitted facts of the case are that one Kedar Nath who owned considerable property died on 17th August 1915 leaving a minor son Badri Nath, two widows Gulab Dei (mother of Badri Nath) and Hubraj Kuer and a stepmother Mt. Parbati. The property left by Kedar Nath was ancestral. After the death of Kedar Nath, mutation of names in respect of his zamindari property was effected, a half-share in the name of Badri Nath and the remaining half-share equally in the names of Hubraj Kuer and Mt. Parbati. Badri Nath died issue-less on 30th June 1925 leaving his minor widow Mt. Rajpati as his heir.

2. Mt. Eajpati, plaintiff in this suit, claims a decree for possession of the half-share of the zamindari property which was mutated in the names of Mt. Parbati, defendant 1, and Mt. Hubraj Kuer, defendant 2. Mt. Gulab Dei has also been impleaded as defendant 3. The case set up by the plaintiff is that in the mutation case following on the death of Kedar Nath, Badri Nath was represented by his mother Mt. Gulab Dei who is a pardanashin and illiterate lady. She had appointed one Din Mahomed as her general agent. Defendants 1 and 2 with the collusion of Din Mahomed got mutation in respect of half the property made in their favour though in law they were not entitled to any share as Badri Nath wag entitled to the whole property by right of survivorship. It was further averred that even if the mutation in question had been effected within the knowledge and with the consent of Gulab Dei, it was not binding on Badri Nath as it was manifestly to the prejudice of his interests.

3. The suit was contested by defendants 1 and 2. They pleaded that Kedar Nath shortly before his death had made an oral will that half of his landed property should be mutated in the name of the contesting defendants as maintenance for their lifetime and the remaining half in the name of his son Badri Nath. They further alleged that after the death of Kedar Nath a dispute arose which was settled through the intervention of certain well wishers of the family in accordance with the will and the express wishes of Kedar Nath and the application for mutation of names was made in accordance with this family settlement. During the pendency o the mutation proceedings, at the investigation of some parsons, Gulab Dei wanted to resile from the family settlement previously arrived at, but she was subsequently persuaded to abide by it and mutation was effected in accordance with the compromise so arrived at. It was also pleaded that apart from this the defendants being entitled to maintenance had a right to retain possession in lieu thereof of the shares mutated in their names. Lastly it was pleaded that the suit was barred by limitation because Badri Nath died as a major.

4. The learned Subordinate Judge found that Kedar Nath before his death expressed the wish that out of his landed property a four annas share should be mutated in the name of his stepmother Mt. Parbati, a four annas share in the name of his junior wife Mt. Hubraj Kuar, and the remaining eight annas share in the name of his son Badri Nath, but this expression of his wishes did not constitute a will. He also found that mutation in favour of defendants 1 and 2 was made in accordance with the terms of the compromise which amounted to a family settlement and is as such binding on the plaintiff. On the question of limitation he held that Badri Nath died as a minor and his widow, the plaintiff, being also a minor, the suit was within time. As a result of his finding about the mutation in the defendant's favour being based on a family settlement, he dismissed the plaintiffs' suit.

5. The learned Counsel for the plaintiff-appellant has in the first place challenged the correctness of the lower Court's finding that Kedar Nath before his death had desired that