JUDGMENT Sen, J.
1. The suit out of which this appeal has arisen was instituted by Mt. Durga Dei, daughter of Babu Mahadeo Prasad, against Mt. Basanta Koer and Mt. Bhagwanta Koer, widows of Babu Mahadeo Prasad, defendants first party, and against the sons and grandsons of Babu Baldeo Prasad (the brother of Babu Mahadeo Prasad), defendants second party. The reliefs which the plaintiff claimed were for a declaration that the document, dated 31st May 1924, executed by Mts. Bhagwanta Koer, Basanta Koer and Jamuna Prasad, was null and void and that the defendants second party had not acquired any right under it to the estate of Mahadeo Prasad, for the appointment of a receiver of the entire property left by Mahadeo Prasad and for an order directing the defendants to deposit in Court or in some bank the amount in cash left by Babu Mahadeo Prasad or otherwise realized; and as an alternative to the relief regarding the appointment of a receiver the plaintiff prayed for a perpetual injunction against the defendants first party to the effect that they should not realize those debts due to Babu Mahadeo Prasad the realization of which might not be necessary and that they should realize those debts the realization of which might be necessary and doposit them in Court or in some bank and appropriate the interest thereof. It is necessary at this stage to append an admitted pedigree which will be useful for the elucidation of the pleadings of the parties:
LALA BANSIDHAR | ______________________________|______________________________________________ | | | | | Lala Behari Lal Lala Narain Das Lala Ram Charan Lala Sheo Charan Lala Dei Dayal died childless died childless Lal died child- died childless. dead.
2. The plaintiffs case was that Lala Bansidhar was the common ancestor of the parties, but he was possessed of no property; that his sons were separate ; that Behari Lal was possessed of some small property and Narain Das had considerable moveable and immovable property; while the other sons of Bansidhar had no property worth the name; that on 26th March 1887, the aforesaid Behari Lal and Narain Das bequeathed their entire moveable and immovable property by means of a will to their nephews, Mahadeo Prasad and Baldeo Prasad; that later on, on 16th May 1890, Baldeo Prasad, after having relinquished all his claims in the properties possessed by himself and his brother Mahadeo Prasad on receiving a sum of Rs. 1,00,000, lived as a separated member along with his son Bisheshar Prasad, and the document of 1890 for the cancellation of the said document; it was further pleaded that Mahadeo Prasad after 1890 acquired considerable cash and property by his personal efforts and died on 3rd June 1909, as a separated Hindu possessed of a great deal of property and his heirs at the time of his death were his widows with limited rights and the plaintiff as the next qualified reversioner, that after the death of Mahadeo Prasad his widows came under the influence of Bisheshar Prasad and adopted various methods for depriving the plaintiff of her just rights in the reversion but were all along unsuccessful, and therefore on 31st May 1924, a document was executed by which seven annas of the entire property left by Mahadeo Prasad was given to Jamuna Prasad and nine annas were retained by the two widows. The plaintiff therefore prayed that, as this document was highly prejudicial to her interests, it might be cancelled and as the widows had been guilty of gross acts of waste and mis relations between the two brothers became strained and Baldeo Prasad ultimately filed a suit for the cancellation of the document of 16th May 1890, but he was unsuccessful up to the High Court and no claim was made on behalf of Besheshar Prasad, the only son of Baldeo Prasad, who was in existence at the time of the execution of the management a receiver should be appointed of the property and the widows be directed to render accounts of the moveable property left by Mahadeo Prasad.
3. The main contesting defendants were defendants of the second party, and their case was that Lala Bansidhar died leaving considerable property; and his sons acquired while they were joint still greater properties and therefore the will of 26th March 1877 was invalid because no member of a joint Hindu family was entitled to transfer joint family property by means of a will; that the said document was not in reality a will but was a device for the management of the property and the maintenance of the estate; that Mahadeo Prasad and Baldeo Prasad entered into possession of the said property not under the will but as survivors of a joint Hindu family and therefore the document of 16th May 1890 was ineffectual inasmuch as Bisheshar Prasad, a son of Baldeo Prasad was in existence at that time, and Baldeo Prasad had no right to barter away the rights of Bisheshar Prasad in a property worth about twenty lacs of rupees for a small pittance. Moreover, Baldeo Prasad executed the document of 1890 as a result of undue influence, misrepresentation and misconception of his rights and the rights of his minor son. The defendants pleaded that they had lived all along with Mahadco Prasad as members of a joint Hindu family and had been constantly benefited by the family property and were in possession of the property as survivors; they further pleaded that after the death of Mahadeo Prasad, several legal proceedings were instituted, bringing about diverse disputes in the family and those disputes were set at rest by the document of 31st May 1924, and therefore that document was in the nature of a family settlement and was consequently binding upon the plaintiff. The two widows of Mahadeo Prasad denied the allegations of waste made against them.
4. The trial Court decreed the suit for a declaration that the deed, dated 31st May 1924, was not binding on the plaintiff and for the appointment of a receiver over the property mentioned in the plaint, except debts, cash, ornaments, promissory notes for Rs. 25,400 moveables and the houses Nos. 76 to 82 on the list appended to the plaint. The actual appointment of the receiver was left for the execution department. The widows of Mahadeo Prasad were further directed to give an account of the amounts of debts (including the promissory notes for Rs. 25,400) due to Mahadeo Prasad at the time of his death which have been realized by them and to deposit the same after deducting Rs. 25,000 in the Imperial Bank. The widows were also declared entitled to receive profits of the property from the receiver and interest on the amount deposited by them. The defendants have come up in appeal to this Court, and the points urged in appeal are that the evidence on the record proves that there was a nucleus of ancestral property which the sons of Bansidhar got from him and that they acquired other properties with the help of this nucleus as members of a joint Hindu family, and that in any event, the five brothers remained joint in mess, business and every other thing and threw all their earnings in the common hotchpot with the result that all the properties acquired by them received the stamp of joint family property and, therefore the will of 1877, if it was a will at all and not a mere device to ensure the proper management and preservation of the estate, was an invalid document. It was further urged that for the above reasons and the reasons mentioned in the written statement the document of 1890 was also invalid and that, although it amounted to a separation between Mahadeo Prasad and Baldeo Prasad, yet Bisheshar Prasad was not bound by the said document and the possession of Mahadeo Prasad was not adverse to Bisheshar Prasad or his son. In the alternative it was contended that the document of 31st May 1924 was in the nature of a family settlement and binding upon the plaintiff. Lastly it was argued that no waste had been proved and no case for the appointment of a receiver or rendition of accounts had been made out.
5. We shall deal with all the points raised in the appeal in our judgment, but by far the most important point is the question whether the five brothers of Bansidhar were joint and possessed of joint family property and whether the will of 1877 is a valid document, and we shall discuss this point first. It is well settled that where there is a nucleus of ancestral property and the members of a joint Hindu family acquire property with the help of that nucleus, such acquired property becomes joint family property. It is also well settled that even if there is no nucleus but if the members of a joint Hindu family acquire property by joint labour and throw it into a common stock, then such property becomes joint family property. We think that there is evidence on the record to show that the relations between the five brothers were cordial and that they were perhaps living together. On the question of nucleus the only evidence that has been relied on by the appellants is a statement contained in the will of the 26th March 1877 wherein Behari Lal says that a moiety share in an ancestral shop facing the cast muhalla Asafgunj is exclusively owned by me and it is argued from this that there was an ancestral shop which would form the basis of a nucleus. We think that this dubious statement cannot be relied upon as proving any nucleus. It does not appear how Behari Lal had a moiety share when at the time when the will was executed there were at least three co-parceners; nor does it appear as to what became of the other moiety share. If there was any ancestral shop owned by Bansidhar, it may well have been divided by the brothers amongst themselves before they started on their own business. A shop does not necessarily mean a running business but may simply mean a house.
6. There is also no evidence that subsequent properties were acquired by the help of this shop. We are therefore of the opinion that the above statement is too slender a foundation upon which the theory of nucleus can be built up. It next remains to be seen whether the brothers carried on business jointly and acquired properties by means of joint labour. We shall show later on that the entire conduct of the parties as evidenced by their declarations in various documents and proceedings is consistent only with the theory that the brothers were carrying on separate business and acquired properties separately, but we should like in the first instance to deal with the evidence that has been produced by the appellants to show the acquisition of properties by means of joint labour. (Here his Lordship considered the documentary evidence and the conduct of the parties and concluded.) Our conclusion therefore is that the five sons of Bansidhar were separate in business and the property covered by the will of 1877 was the separate property of Behari Lal and Narain Das. The will of 1877 is therefore a valid document. It was next contended before us that the document of 26th March 1877 is not a will at all but is simply a cloak or device to preserve the property in the family and therefore Baldeo Prasad and Mahadeo Prasad got the property not as legatees but as heirs under the Hindu law. We were asked to read the document as a whole and special stress was laid upon those passages where the executants say that Baldeo Prasad and Mahadeo Prasad will have no right to transfer the property but will go on managing it under the guidance of certain trusted servants. It was argued that the document contains no specific words of device. We are unable to accept this argument although we agree that the document should be read as a whole. We are of the opinion that the will contains specific words of device and the conditions relating to alienation are repugnant inasmuch as an absolute title was conferred in the first instance on Baldeo Prasad and Mahadeo Prasad, nor do we think that the real object of the executants was the preservation of the estate in the family for there is no formulation of a scheme nor is the ultimate destination of the estate provided for. We are therefore of the opinion that Baldeo Prasad and Mahadeo Prasad entered into possession of the bequeathed property as legatees and not as heirs or survivors of a joint Hindu family.
7. We have now to consider the effect of the release executed by Baldeo Prasad in 1890. Under this document Baldeo Prased relinquished all his rights in the property which was obtained under the will or acquired subsequently by the two brothers. We think that this document effected a complete separation between the branch of Mahadeo Prasad on the one hand and Baldeo Prased on the other. We do not agree with the contention of the appellant that this document effected a partition between Baldeo Prasad and Mahadeo Prasad but left Bisheshar Prasad still joint with Mahadeo Prasad. It is an ordinary incident of Hindu law that when partition is effected between two brothers and these brothers have certain minor sons, each brother represents his own branch consisting of himself and his sons. If it were not so, no partition in a joint Hindu family could be effected as long as there are minors living in the family. Of course it is always open to a minor member to allege that a certain partition effected between his father and his uncle was unjust and unfair and on that ground to claim a reopening of the partition but we find that in this case no such claim was ever set forth either by Bisheshar Prasad or Ishri Prasad, the two sons of Baldeo Prasad, and we also notice that when Baldeo Prasad brought a suit for the cancellation of this document of release, the High Court in its judgment, dated 2nd July 1896, observed as follows:
The whole value of the property of the brothers consisting of Government promissory notes, immovable properties and outstanding debts was according to the defendant (Mahadeo Prasad) nearly five lacs of rupees. There is nothing to show that it was more and the allegation in the plaint that the property was worth (sic) lacs of rupees is wholly unsupported and is evidently an exaggeration. Out of the amount stated by the defendant (Mahadeo Prasad) as mentioned above the outstanding debts amounted to Rs. 2,68,247 so that the remainder of the property was worth a little more than two lacs of rupees and the plaintiff's (Baldeo Prasad's) half share was worth a little more than one lac, some of the outstanding debts were probably bad and irrecoverable debts.
8. This shows that the partition effected by Baldeo Prasad cannot be said to be unjust and unfair. Further we are of the opinion that it is not open to anybody in the branch of Baldeo Prasad to question this partition of 1890. Bisheshar Prasad was born in 1885 and he could not question this partition until 1906, that is to say, within three years of his attaining majority Ishri Prasad was born in 1905, and it is argued that Bisheshar Prasad had till then the right to question the partition. Ishri Prasad obtained a fresh right by reason of his birth which would subsist till 1926. Jamuna Prasad was not born in 1890, and he had no independent right of his own to question the document. He could only come to Court under the cover of Bisheshar Prasad, and Bisheshar Prasad's right because extinct in 1906. The cause of action arose on 16th May 1890, and it is from that date that the period of limitation has to be reckoned. Ishri Prasad's subsequent birth in 1905 does not create a fresh cause of action or a new starting point from which limitation can be reckoned. This is the principle that can be deduced from the case of Rameshar Baksh Singh v. Arjun Singh (1901) 23 All 194. The result therefore is that the document of 1890 must be taken to effect a complete separation between Baldeo Prasad and Mahadeo Prasad which is binding upon the two branches, and it is not open to any of the sons or grandsons of Baldeo Prasad, to question it now. In this connexion it was contended that the deed of release cannot be binding because it is based on wrong statements of facts but according to our findings the deed of release does not contain any false recitals.
9. It was not contended before us that although Baldeo Prasad separated himself from Mahadeo Prasad yet the sons of the former remained joint with Mahadeo Prasad and were constantly benefited from his property and that in any event there was no open assertion of a hostile title by Mahadeo Prasad against the sons of Baldeo Prasad. If we are correct in our opinion that Baldeo Prasad effected a separation not only on his individual account but also on behalf of his minor son, then it is clear that it was not necessary for Mahadeo Prasad to declare in season and out of season that he was asserting a title in the property in his possession adversely to that of Bisheshar Prasad. Partition had been effected and Mahadeo Prasad was enjoying the property exclusively without any interference by anybody. The mere fact of his sole enjoyment was an open and clear assertion of his title. We also find that in 1897 Mahadeo Prasad brought a suit against Hashmat Bibi and Baldeo Prasad was impleaded as a pro forma defendant. The plaint is at p. 535 of our record and in para. 4 of the plaint it was clearly stated that although the bond sued on was executed in favour of the plaintiff and Baldeo Prasad, yet Baldeo Prasad, having taken one lakh of rupees from the plaintiff, relinquished all the property, etc. and the judgment of the Subordinate Judge in this suit proceeded on the basis that this statement of his was correct. We therefore find that the document of release was mentioned prominently in this litigation in which Baldeo Prasad was impleaded as a defendant and this was a clear assertion of title and it was open to Baldeo Prasad to set up the title of his minor son but he did nothing of the kind. There are certain other documents printed at pp. 553 and 577 of our record which go to show that the deed of release was acted upon and Mahadeo Prasad was asserting a title adverse to the interests of Baldeo Prasad and his son. We think, there is no substance in this plea advanced on behalf of the appellant, nor do we think that there is any substance in the averment that the sons of Baldeo Prasad were living jointly with Mahadeo Prasad We are fully conscious of the fact that the branch of Baldeo Prasad from time to time received help at the hands of Mahadeo Prasad, but this is only natural. He was a man of means and it is not unreasonable that he should have on occasions like those of marriages given substantial assistance to his poorer relations, but we unhesitatingly reject the theory of jointness advanced by the appellants. Mahadeo Prasad before his death wrote a letter to Har Kishen Das, the father of Durga Dei's husband, in which he said If I die then do not let, my brother Baldeo Prasad or his sons Patru Lal (alias Bisheshar Prasad) or Ishri Prasad touch my body, because when Baldeo Prasad and I were joint then also Baldeo Prasad was desiring (to take) my life; this was the reason of our separation of which in years have gone by. After this three years ago when Patru desired to administer poison to us upon which we stopped that boy's frequenting the house wholly.
10. This letter is referred to by the Sub-ordinate Judge in his judgment in suit No. 157 of 1913 between Mt. Durga. Dci and Bisheshar Prasad and others. In the same judgment there is also a reference to a report made by a police official about the time of the death of Mahadeo Prasad which is to the following effect:
Today Babu Mahadeo Prasad who is ill from a long time is about to die and Mt. Basanta Koer and Bhagwanta Koer his wives are taking him by train to Kashi in order that after his death his kria karm may be performed there. Baldeo Prasad the brother of Mahadeo Prasad and Ishri and Patru sons of Baldeo Prasad are also going to Benares and have an intention after his death of taking away forcibly his corpse and in order to establish their rights to the assets left by him of doing the kria karm themselves. This will give rise to breach of peace.
11. These two documents which were held to be genuine by the then Subordinate Judge prove conclusively that Mahadeo Prasad was not living jointly with the. sons of Baldeo Prasad. So far we have shown that the claim of the appellant to the property of Mahadeo Prasad on the ground of jointness must fail. We have now to consider the alternative case set up by them to the effect that under the document dated 31st May 1294, which is said to be in the nature of a family settlement, they arc entitled to at least 7 annas of the property left by Mahadeo Prasad. It has been argued before us that the document of 31st May 1924 is a family settlement and is therefore binding not only upon the contracting parties but also upon the plaintiff. We shall assume that a genuine bona fide family arrangement entered into between a Hindu widow and other members of the family will bind not only the parties to the agreement but also the reversioner, and we have therefore got to sec whether this document fulfils the conditions of a genuine family settlement. A family arrangement is founded on the assumption that there was some antecedent title of some kind between the parties and the agreement acknowledges and defines what that title was. Lord Halsbury in his Laws of England, Vol. 14, p. 540, defines a family arrangement as 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 or security of the family and the avoidance of family disputes and litigation, or to the saving of the honour of the family.
12. Such an arrangement very often follows disputes amongst the members of the family, but it is not necessary that these disputes should be necessarily founded upon just claims. All that is necessary is that each party must intend to press his claim to the property by litigation or otherwise, and the fact that, the claims of one of the parties might, if pressed in a Court of law prove unfounded, will not invalidate a family arrangement if it is otherwise brought about in good faith. In this case however we have come to the conclusion that this arrangement cannot be upheld. (After considering evidence in support of this conclusion, the judgment proceeded.) The only questions that we have yet to decide are questions that centre round the allegations of waste made by the plaintiff and determine whether the orders directing accounts and the appointment of a receiver are justified or not. There cannot be the slightest doubt that defendants 1 and 2 are liable to render an account of the amount of debts due to Mahadeo Prasad at the time of his death which have been realized by them and to deposit the same in the Imperial Bank as ordered by the Court below. It is well settled that moveable property stands on the same footing as immovable property so far far as the rights of the widows to deal with the corpus arc concerned. From the application of the widows for a succession certificate it appears that the amount due to Mahadeo Prasad under bonds, account books, decrees and promissory notes was Rs. 2,37,101-9-5, and the plaintiff is entitled that the entire moveable property should be kept intact for the reversioner, the widows being entitled only to the usufruct. The widows made no attempt to give a satisfactory explanation as to how they dealt with all this money. It is said that they spent about Rs. 1,25,000 in building a temple and a tank. It is true that the widows are entitled to spend something for acts which might conduce to the spiritual welfare of the husband and in this respect their powers are greater than in mundane matters of legal necessity but regard being had to the extent of the total property that came into their possession this sum is out of all proportion.
13. The learned Judge of the Court below has held that Rs. 25,000 is ample on this head, and we are in agreement with the Court below that the widows should not have spent more than Rupees 25,000 on the temple and the tank from the corpus of the property. It appears that in a letter which Mahadeo Prasad wrote a few days before his death to the father-in-law of the plaintiff he expressed a desire that the temple should be built by spending a sum within Rs. 5,000 to Rs. 10,000. We therefore maintain the order of the Court below regarding the rendition of the account in the manner provided therein. The question of the appointment of a receiver has given us some difficulty, but after giving the matter our careful consideration we have come to the conclusion that the order of the Court below is justified. We are aware of the fact that it is only in rare cases that such an order should be made, but at the same time it is legal to appoint a receiver under certain exceptional circumstances. The learned Judge of the Court below has dealt with this point exhaustively, and we are in entire agreement with him. Quite a number of frees have been cut and the wood appropriated for providing a fuel stall to Bisheshar Prasad. Several houses have been allowed to fall down and their materials too have been appropriated by Bisheshar Prasad. Nazrana has been realized from tenants and suits for ejectment against them have been withdrawn with the result that tenants have acquired occupancy rights in certain cases. Certain properties have been purchased in the names of Bisheshar Prasad and their relations, and the money for such acquisition has come out of the Kothi.
14. All these matters have been mentioned in detail in the judgment of the Court below with which we are in full agreement, and it is not necessary for us to state in detail the oral evidence that goes to support these allegations. We might however add that' from the year 1909 when the collusive arbitration proceedings were taken after the death of Mahadeo Prasad right up to Slst May 1924 when the so called family settlement was made, the widows have completely identified themselves with the other defendants whose interests are adverse to that of the plaintiff. On their own showing the entire management of their property is in the hands of Bisheshar Prasad, who has been trying for a long number of years to obtain the property by fair means or foul and who, as is only natural, is expected to make as much profit out of the estate as he possibly can, thus prejudicing the rights of the plaintiff. This aspect of the case has to the great extent influenced us in maintaining the order for the appointment of a receiver. It was finally contended before us that in respect of the 7 annas of the property no receiver could be appointed inasmuch as the widows have made a transfer of that portion of their property in favour of Jamuna Prasad, and it is argued that an alienation outright cannot give the reversioner a cause of action for obtaining a relief by way of the appointment of a receiver and that the alienation will hold good for the lifetime of the widows. This argument at first sight appears plausible, but is fallacious in the extreme, for if it were allowed to succeed, the result would be that the widows after having embarked upon a scheme of waste could defeat the reversioner in his just claim by alienating the property to a third person who might be in collusion with them. If therefore waste has been established and the advisability for the appointment of a receiver proved, the third party is liable to be ousted just as much as the widows, for he does not obtain a higher right than the widows themselves. We are therefore of the opinion that the decree of the Court below is correct, and we dismiss this appeal with costs.