JUDGMENT Mukerji, J.
1. This appeal and First Appeal No. 301 of 1926 arise out of the same judgment and the two appeals may therefore be decided jointly.
2. The facts are briefly these:
(For pedigree table see p. 688)
3. The pedigree given above will explain the relationship that exists between the parties to the suit. Kuar Dalip Singh was a rich landed proprietor who died in 1893. He left him surviving his widow Rani Sundar Kuar and four daughters, namely Mt. Dulari, Mt. Bodhi, Mt. Nannhi and Mt. Kalawati Mt. Sundar Kuar died on 2nd September 1919; Mt. Nannhi died in 1900; Mt. Kalawati died in 1915 and Mt. Kalawati's son Sheoraj Singh died in 1925.
4. On 1st May 1898 the mother and the four daughters, three of whom were already married (Mt. Bodhi had become a widow) the fourth daughter Kalawati being yet unmarried, agreed in executing a document which has been described by the executants as a deed of partition. By this document the immovable property left by Dalip Singh was divided in five lots. We have been told that these were lots of equal value and this allegation has not been denied. One lot was taken by the mother and one lot by each of the three daughters excepting the widowed daughter Mt. Bodhi. The fifth lot which should have gone to Mt. Bodhi was taken by her sister jointly. As Bodhi was a childless widow she did not like to take any share in the immovable property and she and her sisters agreed that the latter should give to the former, by way of maintenance, a sum of Rs. 1,400 a year. The shares of property which fell to the lots of the three sisters were made security for the payment of the maintenance. It was further agreed that, if any of the sisters (other than Bodhi) died without male issue, her share would be taken by the other sisters excluding Bodhi, but if any of these sisters died leaving a male issue, her share would go to her such issue alone. On the same day, namely 1st May 1898, two other documents were executed, one by Mt. Bodhi and the other by her sisters. Mt. Bodhi agreed that she would have nothing but cash maintenance and the sisters mortgaged their property to Mt. Bodhi to secure her maintenance.
5. The plaintiff's case is that after the death of Mt. Nannhi Kuar, in 1900, her share was divided between Dulari Kuar and Kalawati Kuar. On the death of Kalawati Kuar the name of her son Sheoraj Singh was recorded. On the death of Sheoraj Singh a dispute arose as to mutation and Mt. Jamna Kuar succeeded in having her name recorded in the place of her husband. Sheoraj's father, Pokhar Singh, defendant 1, and Mt. Jamna Kuar, Sheoraj's widow, are in possession of the share of Kalawati. The plaintiffs, namely Dulari and Bodhi Kuar, are entitled to Kalawati's share in spite of the deeds of 1st May 1898. The plaintiffs also allege that the deed of partition was vitiated by the fact that Kalawati was a minor at the date of the execution of the document. They Dalip Singh (died 17th March 1893) =Mt. Sundar Kuar wife, died 2nd September 1919 ____________________________________|__________________________________ | | | | Mt. Kalawati Kuar, Mt. Nannhi Kuar, Mt. Bodhi Mt. Dulari Kuer, died 1915 died childless (widow) Plaintiff 2 plaintiff 1 =Pokhar Singh (husband), in 1900 defendant 1 | Sheoraj Singh, died 23rd June 1926 =Mt. Jamna Kuar, defendant 2 further alleged that the deeds of 1898 were valid only up to the lifetime of Sundar Kuar, but they were as of no effect after her death, specially as it was sought by that deed to create a new mode of succession which was opposed to the Hindu law. Under Hindu law the plaintiffs were entitled to succeed to the share of Kalawati by right of survivorship and the defendants have no interest in the property.
6. Defendant 1 contended that he had nothing to do with Kalawati's property, that he was in possession of only one house and that it was his own property, having been erected on his own land with his own money. The case of defendant 2, inter alia, was that the deeds of 1898 were valid in law and were binding on the plaintiffs and that they were estopped from impugning their validity. She denied that Kalawati was a minor in 1898.
7. The learned Subordinate Judge who tried the case held that Mt. Kalawati was not a minor at the date of the execution of the three documents of 1898, that the house property, which Pokhar Singh claimed as his own, was really his property and could not be claimed as the property of Mt. Kalawati. As regards the deeds of 1898 the learned Judge was of opinion that they could not be treated as a family arrangement, inasmuch as there was no dispute in the family which might have required to be settled, and that they were good in law up to the death of Mt. Sundar Kuar. As regards the claim of Mt. Bodhi the learned Judge was of opinion that, although her claim to recover possession of a half share in Mt. Nannhi's property, on the latter's death, failed in 1908, she could claim that property again and the claim was not barred by Section 11, Civil P.C. The Judge, however, held that Mt. Bodhi's claim, as regards the share which had been allotted to her but which was not given to her, but was given to her sisters, was barred by Section 11, Civil P.C. As regards the plea that a part of the claim was barred by Section 233(k), Land Revenue Act, the learned Judge held that so far as there was a partition of the property of Pilibhit Khas, after the death of Sundar Kuar, the partition barred the suit with respect to the partitioned property. The learned Judge was also of opinion that Mt. Bodhi's claim with respect to her own share was barred by limitation. In the result the learned Judge decreed the suit for possession of the property originally allotted to Mt. Kalawati and Nannhi Kuar along with mesne profits to be determined in the execution department. He dismissed the suit with respect to the property which was the subject-matter of partition in the revenue Court in 1921(Pilibhit Khas) and in respect of the property allotted to Bodhi Kuar.
8. Appeal No. 295 of 1926 is on behalf of the defendants, and Appeal No. 301 of 1926 is on behalf of the plaintiffs with the result that the whole suit is before this Court. It will be noticed that the learned Judge omitted to dismiss the portion of the plaintiffs' suit, as the result of his finding on Issue 2, which related to the house, being item 14 in the specification of shares appended to the plaint. The learned Judge found that the plaintiffs were not entitled to recover possession of either the house or its site. In this Court the point was not re-argued on behalf of the plaintiffs and therefore, the finding of the learned Judge that the house and its site belonged to defendant 1, Pokhar Singh, must stand. Pokhar Singh's appeal therefore with respect to the house will have to be allowed.
9. The finding of the lower Court that Mt. Kalawati was sui juris in 1898 has again not been challenged before this Court and that finding must be accepted for the purposes of the decision of the appeal.
10. The finding of the learned Judge that the claim as regards the property Pilibhit Khas was barred by Section 233(k), Land Revenue Act, has not been contested before this Court and that finding will stand.
11. It has been argued on behalf of the defendants-appellants that the learned Subordinate Judge ought to have held that the documents of 1898 were, in their nature and essence, a family arrangement and were not opposed to any rule of positive law and were therefore binding on the plaintiffs. It is farther urged on their behalf that the plaintiffs were estopped from maintaining the suit. These are really the only points in controversy between the parties and those points alone require determination by this Court. These points may be categorically stated as follows:
(1) Whether the documents of 1898 are in the nature of a family arrangement and are therefore binding on the parties, although there was no actual dispute between the parties at the date of these documents. (2) If the documents evidence a family arrangement whether the arrangement contravenes any rule of substantive law and is therefore not binding on the plaintiffs? (3) Whether the plaintiffs are estopped from maintaining the suit?
12. Point 1-It was urged before the Court below and it has been argued before us that there can be no family arrangement without there being in existence a substantial dispute between the members of the family. On this point there was really a difference of opinion between the learned counsel who appeared in the two cases. When F.A. 295 of 1926 was argued Sir Tej Bahadur Sapru, on behalf of the respondent, conceded that there could be a family arrangement which would bind the parties to it, without there being in existence a substantial dispute between the parties, the object of the parties being either preservation of the family property or preservation of peace. When however appeal No. 301 of 1926 was argued on behalf of the appellants, namely the plaintiffs, who are respondents in Appeal No. 295, Mr. Iqbal Ahmad argued that there could be no valid family arrangement without there being in existence a dispute among the members of the family. The counsel for the defendants, not being therefore of the same opinion, it is necessary for the Court to decide whether there could or could not be a family arrangement binding on the parties to it, without there being in existence a dispute as regards the property. On this point the law in India has been borrowed from England and it has not been disputed that the principles of English Law would apply to India. 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.
13. It will be noticed that avoidance of family disputes is only one of the many grounds which go 'to validate a family arrangement. A family arrangement to be good need not, necessarily, be a "compromise of doubtful rights." In Williams v. Williams [1867] 2. Ch. 294. at p. 331, it was definitely stated that for a family arrangement to be good it was not necessary that there should be a family dispute which had to be settled or composed. The idea that the existence of a dispute is essential is due to this: that where there is a dispute the settlement of it will constitute the consideration for the parties to act as they propose to do. But where the object is the preservation of the property or preservation of the family peace there is in existence no such or any consideration for the contract. The case of Williams v. Williams [1867] 2. Ch. 294. was approved of in India in the case of Helan Dasi v. Durga Das [1906] 4 C.L.J. 323. by two eminent Judges of the Calcutta. High Court. Mr. Iqbal Ahmad cited one obiter dictum of one of the learned Judges of this Court as his authority for the proposition that the existence of a dispute is essential. In Mitter Sain v. Data Ram A.I.R. 1926 All. 194 at p. 205(of 24 A.L.J.), Sulaiman, J., expressed the opinion that for the existence of a family settlement there must be a settlement of doubtful claims. At p. 206 the learned Judges said:
There must be a bona fide dispute which is to be settled by a private family settlement without having recourse to law. In the present case there could be no dispute whatsoever.
14. With all respect I am unable to accept this view and I have already quoted authorities in support of my view. I may point out that in support of his opinion the learned Judge did not quote any authority. Mr. Iqbal Ahmad also tried to support his contention from certain statements of law made in the Court of the Judicial Commissioner of Oudh. This Court is in no way bound by any expression of opinion made by the Judges of a different Court, specially of a Court which is not of the same status as this Court.
15. Coming to the actual arrangement arrived at there can be no doubt that it is in the nature of a family arrangement. The mother Sundar Kuar inherited the family property and she had four daughters who were likely to succeed her, if all of them survived her. There was no certainty that all the four daughters would survive her and there was no knowing how long the mother was going to live. On the principle that a bird in hand is worth two in the bush' the mother and daughters agreed that what was uncertain might be made certain and what was mere expectancy might be made into a certainty. They therefore agreed to divide the entire property, at once among themselves. So far as the mother is concerned it was a case of pure love on her part that she allowed her daughters to share the property with her. So far as the daughters were concerned they agreed to accept concrete property in the place of a mere chance of surviving each other. Such an arrangement can only be regarded as nothing but a family arrangement. The consideration for the daughters to enter into the transaction was that each got a definite property while Mt. Bodhi got cash maintenance secured on immovable property. Each of the three daughters who were likely to have children had the assurance that some property would surely go to her male descendants if there happened to be any. The plaintiff Dulari already had two sons and she was assured that her sons would be sure to get her share in the property, even if the mother predeceased her own mother Sundar Kuar or her several sisters. Thus there was good consideration for the arrangement. It avoided uncertainty and chance of litigation in future. I have no hesitation in holding and I do hold that the transaction of 1898 was a family arrangement, binding on the parties, if it be not otherwise in contravention of any positive rule of law.
16. As to the second point the main plank of the plaintiffs' case is this: no doubt the transaction of 1898 was a good one so long as the mother lived. The mother had a life interest and she could give the property during her lifetime to anybody she pleased, but she could not continue to give a valid title after her death and, on the death of the mother only those daughters could succeed, in law, as survived her. On the death of the mother Sundar Kuar, only two daughters survived her, namely the plaintiffs, and therefore in so far as they had agreed, by the document of 1898, not to claim their legitimate share, they had contravened Section 6(a), T.P. Act, which has always been applied to Hindus, though the law, in terms, did not apply to them. The whole question therefore is whether this argument is sound and must be given effect to.
17. I have given the case my best consideration and have not been able to persuade myself that the transaction of 1898 amounted to a transfer of a mere expectancy to inherit property.
18. In 1898 none of the daughters of Dalip Singh had any interest in the property nor had they possession over it. When therefore they got the property in 1898 they got the property without any title. When they got the property there was no longer any question of their having nothing but a mere chance of succession. There was no longer any question of chance of succession to the property, for the simple reason that they had already got it. It is true that their title was secure only till the lifetime of the mother, and on the death of the mother the title of only those daughters would prevail as survived the mother. But the property being actually in the hands of the daughters, could not they agree, as between themselves, that it would be in the interest equally of each of them that, in the place of uncertainty of tenure, they should have something certain and definite for themselves and for their male issues?
19. There can be no doubt that the arrangement was in the, best interest of the daughters themselves; at least they thought that it was and if they themselves thought so, we have no reason to say that they were unwise. The whole question therefore is whether the transaction was one in contravention of Section 6(a), T.P. Act. That rule of law prohibits the transfer of a mere contingency, namely a chance of succession. In my opinion the transaction that was entered into was not at all a transfer of a chance of succession. The property having already been reduced to possession there is no further question of chance. What was once a chance had become a matter of certainty. All the four sisters had the property in their hands and what they proceeded to do was to divide it definitely as if it belonged to them absolutely. If a partition of property may be regarded as a transfer within the meaning of Section 5, T.P. Act, the transactions of 1898 may also be regarded as transfers by all the four sisters. The definition of transfer in Section 5 would, however, exclude any such idea. That definition is as follows.
Transfer of Property means an act by which a living person conveys property in present or in future to one or more other living persons or to himself and one or more other living persons; and to transfer property is to perform such act.
20. The definition excludes the idea of partition as falling within it. I hold that the arrangement of 1898 does not contravene Section 6(a), T.P. Act.
21. Point 3 as regards estopael. There can be no doubt that on the facts of this case no Court of justice will allow the plaintiffs to claim the property in suit, whatever the rights of the grandsons of Dalip Singh may be on the death of all his daughters. By the arrangement of 1898 each of the four daughters agreed that on her death the property allotted to her would go to her mala issue. By this agreement, if the plaintiff Dulari Kuar had happened to die in the lifetime of Kalawati, Kalawati could never have asked Dulari's sons to hand over the property allotted to Dulari to her (Kalawati). Thus the agreement and promise, which Dulari gave to or made in favour of Kalawati, was the basis of Kalawati's agreement to the same effect in favour of Dulari. Having obtained therefore from Kalawati a promise in her own favour can Mt. Dulari or can Mt. Bodhi be permitted to go against the representation they made to Mt. Kalawati? I am of opinion that they cannot be permitted. The point is really concluded by two cases decided by this Court and a Privy Council case. In Mahadeo Prasad Singh v. Mata Prasad A.I.R. 1922 All. 297 two learned Judges of this Court held that where the next presumptive reversioner consented to and joined in a gift by a Hindu daughter in possession of her father's estate as a limited owner, and on the death of the daughter succeeded to the estate as the actual reversioner, the next presumptive heir was estopped from challenging the gift. This view was reaffirmed in the case of Fateh Singh v. Rukmini Rawanji A.I.R. 1923 All. 387. In this case a Hindu widow made a gift of property in favour of an idol of a large portion of property in her possession. Two of the reversioners for the time being executed a deed of relinquishment in favour of the idol. On the widow's death it was held that one of the executants of the document, who became the actual reversioner, was estopped from claiming the property.
22. In the case of Kanhai Lal v. Brij Lal A.I.R. 1918 P.C. 70 on the death of the survivor of three joint brothers, the family property came into the hands of the widow of the surviving brother. The widows of the predeceased brothers and one Kanhai Lal, the appellant before their Lordships of the Privy Council, who claimed to have been adopted by one of the widows of the predeceased brothers, disputed the right of the widow entitled to the property, on various grounds, including the adoption of the appellant. The result was a compromise by which the property was divided and the widow of the last survivor got some property which, it was agreed, would go to her daughters, On the death of the widow the appellant claimed as the next reversioner. It was held that his claim was barred on the ground of estoppel. The case of Shamsuddin v. Abdul Husain [1907] 31 Bom. 165 was relied upon bo show that the appellant had only a right of expectancy and he could not have validly bargained with it, so as to be estopped from asserting his right, when it became ripe. The Privy Council distinguished the case and, as already stated, held that Kanhai Lal by his acts, namely by entering into the compromise, had debarred himself from claiming as a reversioner.
23. In Joy Durga v. Saroj Narain P.C.A. No. 132 of 1927, decided on llth June 1929 two sisters, who had received nothing better than a daughter's estate from their father, under his will agreed between them that on the death of one her half share would go to her son. On the death of one of the sisters the survivor claimed the property held by the deceased in her lifetime, and since her death held by her son. It was argued for the claimant that the agreement was void. The Privy Council said that their Lordships ware not impressed by the argument and there was no authority for such an argument.
24. In the case before me the sisters not only entered into the agreement, but they have so long acted on foot of it that it is impossible to say that it was ever in the contemplation of any of the sisters that after the death of the mother the survivor could aver possibly claim as against the mala descendants of the deceased sister. On foot of the agreement in favour of herself Bodhi brought numerous suits claiming her maintenance. She brought her suits not only during the lifetime of her mother and Kalawati, but also afterwards on the death of Kalawati, in 1916, against Sheoraj, Kalawati's son: sea pp. 229 and 233 of the printed record and also after the death of her mother Sundar Kuar, against Sheoraj, in 1923: see pp. 259 and 261 of the record. Similarly Mt. Dulari brought numerous suits for partition and Kalawati also brought similar suits. It will be enough to cite two instances. In 1923, after the death of Rani Sundar Kuar, Mt. Dulari sued Sheoraj for her share of the profits in Pilibhit Khas see pp. 265 and 267. Again Sheoraj brought a suit for partition against Mi. Dulari for the property of Pilibhit Khas: in 1920, subsequent; to the death of Sundar Kuar: see p. 253. Not only therefore the agreement of 1898, but also the subsequent acts of the parties and their successors, constitute estoppel against all the parties to the transactions of 1898 going against them.
25. The Privy Council case of Rangaswami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196 was cited on behalf of the defendants in support of the argument that Sundar Kuar having retained a portion of the property of her husband there is no valid acceleration or surrender in favour of the daughters. At p. 539 of the report their Lordships point out that, although a reversioner need not impugn a transfer by the widow at its inception, there is nothing to prevent him from impugning it after the death of the widow; the reversioner might do something before that time which amounted to an actual election to hold the dead good. In this case Mt. Dulari brought her suit for profits against Sheoraj, the son of Kalawati, in 1923, four years after the death of her mother and thereby recognized the validity of the transaction of 1898: see pp. 265 and 267. Again, when Sheoraj sued for partition of Pilibhit Khas in 1920: see p. 253, no plea on the ground of invalidity of the transaction of 1898 was raised by Mt. Dulari. Further, Bodhi brought her suit against Sheoraj in 1923 on the basis of the agreement of 1898 and succeeded in her suit: see plaint at p. 259, paras. 3 and 4. These acts on the part of the plaintiffs go to show that the plaintiffs made an actual election after the death of their mother, to hold the deed good.
26. For these reasons I am clearly of opinion that the plaintiffs are estopped from maintaining the suit.
27. In the result the defendants' appeal, namely Appeal No. 295 of 1926, be allowed, and Appeal No. 301 of 1926 must be dismissed.
28. In view of the fact that no other point has been debated in the High Court all the points that have been decided against the parties by the Court below must be taken as finally decided and they do not call for any decision by this Court, although the correctness of those decisions have been controverted in the memorandum of appeal.
Bennet, J.
29. These are two first appeals, No. 295 of 1926 by the defendants and No, 301 of 1926 by the plaintiffs, brought against a decree of the Subordinate Judge of Pilibhit allowing the suit of the plaintiffs in part and dismissing it in part. The parties belong to a family of which the pedigree is as follows:
(for pedegree see p. 688)
30. Tahkur Dalip Singh owned consider able zamindari property as a separated-Hindu and he died on 17th March 1893. His widow Mt. Sunder Kunwar succeeded to his estate with the limited right of a Hindu widow, and in 1898 she bad, living with her, four daughters: Mt. Dulari married, with a husband and one or two children; Mt. Nanhi, married, with her husband; Mt. Budhi, a childless widow; and Mt. Kalawati, unmarried.
31. On 1st May 1898, under these circumstances, Mt. Sundar Kunwar and her four daughters executed and registered a deed of partition of the entire property of Thakur Dalip Singh, then held by his widow, and the relevant portions of the deed state as follows:
Dalip Singh, the ancestor of us the executants, died about six years ago. 'The property, e.g. zamindari detailed below owned and possessed by him alone without the participation of anyone, has been partitioned for several generations. Mt. Sundar Kunwar is the owner in possession thereof. In future it is to devolve on us: Mt. Dulari Mt. Nanhi. Mt. Budhi, and Mt. Kalawati. Now we, the executants, have in order to avoid disputes in future, with mutual consent partitioned it thus that mauzas... in Sch. 1, have been given to Mt. Dulari; mauzas... in Sch. 2 to Mt. Nanhi; mauzas... in Sch. 3 to Mt. Kalawati; mauzas... in Sch. 4 to Mt. Dulari, Mt. Nanhi and Mt. Kalawati jointly; and Mt. Sunder Kunwar shall in her lifetime remain in possession of mauzas... given in Sch. 5. After Sundar Kunwar's death whatever property has been allotted to her share shall be equally divided between Mts. Dulari, Nanhi and Kalawati. As I, Mt. Budhi, am a childless widow, I did not desire to share in the said property. On the other hand Mts. Dulari, Nanhi and Kalawati and their representatives shall pay me during my lifetime Rs. 1,400 per annum in equal shares, and the said amount will be charged on their shares. They have today executed a separate agreement in regard to the said payment to Mt. Budhi. No one shall make any objection in regard to property allotted to another. If any one of the three, Mt. Dulari, Mt. Nanhi, or Mt. Kalawati, dies and leaves male issue, then the male issue shall be owner in possession of her share in her place; but if one dies without male issue her other sisters will be owners in possession of her property. After the death of (all) the sisters their male issue shall be owners in possession. An order in mutation dated 12th March 1901(printed on pp. 111 and 112 of the paper book of Appeal 295 of 1926) shows that the daughters Dulari, Nanhi and Kalawati obtained possession of their shares from the time of execution of this agreement. Mt. Nanhi died without male issue in 1900 and Mt. Dulari and Mt. Kalawati obtained possession of her share and got mutation under this order. Mt. Kalawati died in 1915 leaving a son Sheoraj Singh who succeeded to her share, Mt. Sunder Kunwar executed a deed of endowment on 23rd November 1916, endowing a thakurdwara with her share, and making herself the first manager, and after her death making Mt. Budhi manager. Mis. Sundar Kunwar then died on 2nd September 1919.
32. Sheoraj Singh, son of Mt. Kalawati, died on 23rd June 1925 and his widow, Mt. Jamna Kunwar, defendant 2, succeeded to possession of his share under the guardianship of his father Kunwar Pokhar Singh, defendant 1.
33. There are now two daughters of Dalip Singh surviving Mt. Dulari and Mt. Budhi. On 30th September 1925 Mt. Dulari and Mt. Budhi, plaintiffs, brought the present suit against Mt. Jamna Kunwar and her father-in-law, Kunwar Pokhar Singh, defendants. The plaintiffs claim that the agreement of 1st May 1898 was invalid as Mt. Sunder Kunwar could not partition the property which she held as a Hindu widow so as to affect the succession to it after her death, and that the defendant, Mt. Jumna Kunwar, claiming to hold for her life as the widow of Sheoraj Singh, had no right to hold any part of the property which originally belonged to Thakur Dalip Singh. The lower Court has granted the plaintiffs a decree for possession of the share of Mt. Kalawati and the portion of the share of Mt. Nanhi which went to Mt. Kalawati, but the Court has dismissed the claim for the share of Mt. Budhi, holding that to that extent the agreement of 1st May 1898 is valid.
34. We shall first examine the appeal of the defendants as if that appeal succeeds; the appeal of the plaintiffs cannot succeed. Mr. Iqbal Ahmad on behalf of the plaintiff's in their appeal advanced the proposition that there must be a bona fide dispute before there can be a family settlement, and that in the present case there was no bona fide dispute. That proposition of law was not advanced by Sir Tej Bahadur Sapru on behalf of the plaintiffs in the appeal of the defendants. But we shall first examine the facts of the origin of the agreement of 1st May 1898 and then examine the proposition of law. The Subordinate Judge has held that there was no bona fide dispute and therefore, he says, no family settlement, and therefore the agreement cannot affect the succession after the death of Mt. Sunder Kunwar.
35. The case for the defence in the written statement para. 2 is that on the death of Dalip Singh, Mt. Sunder Kunwar, his widow, wanted to build a thakurdwara and make a wakf of the entire estate of Dalip Singh in accordance with directions in an alleged will of Dalip Singh. That the daughters offered obstruction, and disputes arose. That the agreement of 1st May 1898 was executed in order to maintain peace, save the family property and avoid litigation. The plaint alleged that there was no dispute between the daughters and the mother. There is no mention in the agreement of any dispute about the endowment of a thakurdwara or anything else. The words are "in order to avoid dispute in future." It was not till 23rd November 1916, shortly before her death in 1919, that Mt. Sunder Kunwar executed the deed of endowment of the thakurdwara, so it is not probable that the matter was urgent in 1898. That deed of endowment does allege that there was a will or expression of desire by Thakur Dalip Singh for the endowment, and that for that reason Mt. Sunder Kunwar reserved property in three villages at the partition of 1898 with that intention. But there is no recitation that the partition was made on account of the endowment or disputes in regard to it. There is only one witness for the defence who alleges that there was any dispute between mother and daughters before the agreement. This is Mohanlal, the scribe of the document. On the side of the plaintiff's there are a number of witnesses who say there was no such dispute, and that the daughters were on terms of affection with their mother. Mt. Budhi, plaintiff, and some of plaintiffs' witnesses state that the partition was made because Mt. Sunder Kunwar was apprehensive that after her death Jangi Singh, a collateral of Dalip Singh, might claim the property. On 22nd April 1895 Jangi Singh executed a deed of relinquishment stating that there was a dispute of partition between him and Mt. Sunder Kunwar in respect of four villages held jointly in equal shares. This deed sets forth that Jangi Singh and his heirs are only entitled to a half-share in these joint villages and that Mt. Sunder Kunwar is entitled to the other half, and that she owns all the other properties of Dalip Singh. The deed continues:
The aforesaid Musammat has power to transfer it, under a deed of gift or will, to or in favour of her daughters or daughter's son or keep part of it for endowed property.
36. Thus as early as 1895 Mt. Sunder Kunwar contemplated a partition with her daughters, and the retaining of part of the property for endowment.
37. That there was ground to fear opposition from the sons of Jangi Singh is shown by the judgments of the revenue Court in mutation applications made on the partition deed and on the death of Mt. Nanhi. On both these occasions the sons of Jangi Singh made objections against the entry of the daughters, but the second order shows that the objections were overruled on the ground that the daughters were in actual possession.
38. Another factor which may have produced a desire to separate off shares for each daughter is the fact that the husbands of two married daughters were living in the house of their mother-in-law Mt. Sunder Kunwar and apparently being supported from her estate, These men were P.W. Than Singh, husband of Mt. Nanhi Kunwar who says he was aged 19 at the time of the partition deed, and Khan Singh, husband of Mt. "Dulari, who had been living there since the time of Dalip Singh, and who is said to have taken an active part in the partition according to the scribe Mohanlal. Khan Singh was related to Pokhar Singh,-defendant 1, who says that from before the partition Khan Singh was discussing with Mt. Sunder Kunwar the marriage between Pokhar Singh and Mt. Kalawati which was carried out after the partition. Khan Singh therefore had a considerable interest in getting the partition made.
39. We consider that there was no dispute between the mother and daughters before the partition., but that the causes indicated above were sufficient to produce the partition, and not the least of these was the cause named in the deed "in order to avoid disputes in future."
40. Before dealing with the law on the subject we shall refer to the ample evidence which shows that the settlement in the deed of 1st May 1898 has all along been carried into effect by the different parties to it, including the plaintiffs who now sue to set it aside. At the same time as this deed there were two other documents executed: one a relinquishment by Mt. Budhi of her present and future claims to the estate of her father, and the other an agreement by Mt. Dulari, Nanhi and, Kalawati charging their shares with the payment of Rs. 1,400 annually to Mt. Budhi. (After considering the evidence, the judgment proceeded). This evidence shows clearly that the parties have all along acted on the agreement of 1st May 1898 and treated it as valid up to the date when plaintiffs filed the present suit on 30th September 1925, a period of 27 years. We now turn to a consideration of the law on the subject. Mr. Iqbal Ahmad for the plaintiffs advanced the proposition that without a bona fide dispute there cannot be a family settlement, and for this he relied on two rulings of the Oudh Chief Court, In the first of these cases, Dilipat Singh v. Kashi Nath[1914] 17 O.C. 103, no such rule is laid down. In the second case Sharifunnisa v. Shafiquzzaman A.I.R. 1923 Oudh 185, it is stated on p. 641 that:
a family settlement implies a mutual settlement by certain contending parties belonging to the same family of disputed claims and rights.
41. But the case was decided on the ground that the matters in dispute were settled by arbitrators, not on the ground that there was no dispute.
42. Reference was also made to observations by Lindsay, J., on p. 197 and by Sulaiman, J., on p. 205 {of 24 A.L.J.) of Mitter Sain v. Data Ram A.I.R. 1926 All. 194, which were to the same effect. None of these rulings explains from whence is derived the idea that a family settlement presupposes a dispute.
43. For the defence Mr. O'Conor referred to Williams v. Williams [1867] 2. Ch. 294. for the proposition that a family arrangement may be such as the Court will uphold, although there are no rights in dispute. On the other side it is argued that case would not apply to the facts of the present case. It is true that in the present case the settlement was between persons who had limited estates, and of whom the estates had not vested, except in the case of the mother. It is for this reason that the doctrine of family arrangement is invoked, and not because of a defective method of transfer, for they embodied their arrangements in a registered deed. On the other hand in Williams v. Williams [1867] 2. Ch. 294. the persons concerned had full ownership, and the doctrine of family arrangement was invoked because no legal method of transfer of the property was employed. The plaintiff and defendant were sons of one John Williams who died leaving borough English which was inherited exclusively by his younger son and socage which was inherited exclusively by his elder son and gavelkind which was inherited equally by both. It would have been possible for the sons to make valid transfers of this property so that each would become owner of half. Instead of doing this, when they found that their father's will which intended to leave all the property to them in equal shares was invalid the elder brother declared that the invalidity of the will would make no difference, and that the property should be "not mine or thine, but ours". The property was held on these lines for twenty years. Because the arrangement between the brothers was not a formal contract under seal or one of the methods then legal for conveying real property, it was necessary to enter into the question of consideration, and consideration was found in the fact that the younger brother brought into the common stock the borough English exclusively to him. On p. 300 it is laid down:
So far as the motives which led the appellant to admit his brother to an equal share of their father's property are concerned this case differs from those cases of family arrangement which have formerly been the subject of decision. There was here no doubtful right to be compromised, no dispute between the brothers which was to be set at rest, no honour of the family involved; the appellant was merely prompted by respect for his father's intentions and by his affection for his brother, both most excellent and praiseworthy motives, but scarcely sufficient to constitute such a consideration as would convert an act of kindness into a binding engagement. If therefore there had been no consideration for the appellant's promise to share the freehold property with his brother I should have been disposed to hold that he could not be bound by it. But it appears to me that there is quite sufficient consideration to prevent its being a mere voluntary agreement, and that the Court will not be disposed to scan with much nicety the amount of the consideration.
44. This rule in Williams v. Williams [1867] 2. Ch. 294. was followed by Mookerjee, J., at p. 331 in Helan Dasi v. Durga Das Mundal [1906] 4 C.L.J. 323. In Sidh Gopal v. Behari Lal A.I.R. 1928 All 65 at p. 981(of 25 A.L.J.) the definition of "family arrangement" in Halsbury's Laws of England, Vol. 14, p. 540 has been adopted and it was held that the only requisite to make a valid family arrangement is that it should be 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 avoiding of family disputes and litigation, or to the saving of the honour of the family.
45. We consider that it is not necessary for the validity of a family settlement that there should have been a dispute existing between the parties at the time of the family settlement. The case was approached by Sir Tej Bahadur Sapru for the plaintiffs from a different angle of vision. His first question was: Who could deal with the property in 1898? If by dealing with the property we mean making a valid transfer of the property, the answer is that only Mt. Sundar Kunwar could deal with the property, because her daughter has during her lifetime a mere spes succession is, which was incapable of transfer. His next question was: In what ways could Mt. Sunder Kunwar deal with the property? His answer was: (a) she might transfer the whole proprietary right for valid necessity; (b) she might transfer her life interest; (c) she might surrender her life interest and if the surrender was made to the next reverisoner he would then take the estate to which he was entitled. These were, he said, the only three ways in which she could deal with the estate. His next question was whether independently of Mt. Sundar Kunwar the daughters could deal with the property. His reply was that they could do so in no conceivable circumstances because they had only a spes succession is, a mere contingent interest. His last question was: Assuming that under Hindu law the mother could only deal with her property in the three ways (a), (b), (c), could the daughters and mother combined have dealt with it in any other manner? His reply was that they could do so Only if there was a dispute between the mother and daughters, This brings us back to the proposition that a dispute is necessary to the validity of a family settlement; and we have already held that dispute is not necessary.
46. The argument was next advanced that the daughters, after the death of their mother, take as daughters not of the mother but as daughters of the father, and that any agreement by them about their life interest would not be binding on them if made before the death of their mother. There does not seem to be any reason why this conclusion should follow from these premises.
47. Reference has been made for the plaintiffs to numerous cases, but none of them are on all fours with the present case. For instance in Rangasami Gounden v. Nachaippa Gounden P.C.A. No. 132 of 1927, decided on 11th June 1929, their Lordships of the Privy Council quoted the dictum of Lord Morris in Behari Lal v. Madho Lal Ahir Gyawal on p. 532:
It may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate so that the whole estate should get vested at once in the grantee.
48. At p. 536 their Lordships stated:
The result of the consideration of the decided cases may be summarized thus: (1) An alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest raversioner or reversioners at the time of the alienation. In such circumstances the question of necessity does not fall to be considered. But the surrender must be a bona fide surrender, not a device to divide the estate with the reversioner.
49. The second proposition dealt with alienation for necessity, with which we are not concerned. Now the argument of the plaintiffs based on this and similar rulings is that the agreement of 1st May 1898 is invalid because Mt. Sundar Kunwar did not surrender the whole of her life interest, but retained it in one-fifth of the estate. We consider that the rule in Rangasami Gounden v. Nachiappa Gounden P.C.A. No. 132 of 1927, decided on 11th June 1929, does not apply to the present case for two reasons. In the first place the transaction challenged in Rangasami Gounden v. Nachiappa Gounden P.C.A. No. 132 of 1927, decided on llth June 1929, was a conveyance of part of the estate by a widow in possession to one who was no doubt then the nearest reversionary heir, but he died before the death of the widow and the property transferred passed to his heirs. The plaintiff was not one of his heirs, but was the nearest reversioner at the death of the widow. The plaintiff was not a party to the transaction challenged nor did he claim through one who was a party. The question therefore was whether the transaction was absolutely valid as against a reversioner who was in no way connected with the transaction. It was for such a question that the rule was laid down that a surrender by a widow must be of her whole interest in the whole estate.
50. But the question before us is a much narrower question, because the present plaintiffs were both of them executants of the deed in question. By entering into that agreement the plaintiffs recognized the validity of the partial Surrender of her estate by their mother and it is not now open to the plaintiffs to claim that a partial surrender is invalid.
51. The second reason why the rule in Rangasami Gounden v. Naahiappa Gounden P.C.A. No. 132 of 1927, decided on 11th June 1929, does not apply is because the rule is a rule for alienation by a widow in favour of reversioners whereas the present case is one of family settlement among reversioners, two of whom have survived at the death of the widow. The next case on which the plaintiffs relied was Debi Prasad Chowdhury v. Golap Bhagat[1913] 40 Cal. 721. That was a case of a mortgage by a Hindu widow of portion of the estate with the consent of the next reversioner for the time being, and it was challenged by the actual reversioner, who did not claim through the person who had consented. Reference was made to the four rules laid down by Mookerjee, J. at pp. 781 and 782. But the two reasons which we have given above distinguish the present case.
52. The plaintiffs next referred to Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 Beng. L.R. 377, which quoted at pp. 394 and 395 the dictum of Lord Justice Turner in Soorjeemoney Dossee v. Denobundoo Mullik [1855-57] 6 M.I.A. 526:
A man cannot create a new form of estate, or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.
53. But in the agreement of 1st May 1898 there is no such creation or alteration. The parties to that agreement consented to enjoy their life interests in a certain way, and it is during the continuance of two of those life interests that we are asked to upset that agreement.
54. It was next argued for the plaintiffs on the strength of Himmat Bahadur v. Dhanpat Rai [1916] 38 All. 335, that the agreement was not a proper family settlement because the daughters had only a spes succession is at the time of agreement. But the enjoyment of their life estates by the daughters was in fact accelerated by the action of their mother, and on the death of their mother the plaintiffs continued to recognize the agreement, and the rights of Sheoraj Singh under the agreement. In fact it was only on the death of Sheoraj Singh that the plaintiffs object to his rights now in the possession of his widow. The case reported in Himmat Bahadur v. Dhanpat Rai [1916] 38 All. 335, dealt with a relinquishment of part of the property by a widow and her daughter in favour of the husband of a deceased daughter, who had no legal claim whatever; and the persons who challenged it were not parties to the transaction but persons who were minors at the time. On p. 338 it is stated:
It seems to us that the very highest at which the defendant's case can be put is that he in the year 1889, put forward a baseless claim and the ladies in order to avoid being forced into litigation, consented to give him the property in suit... it does not follow from that there was a bona fide dispute, bona fide settled by members of the family. There is a great difference between settlement of family disputes or even the screening of family scandals and yielding up property on a threat of litigation. It is reasonable that the former should bind the family even though they may have been minors at the time. A transaction of the other kind can at best only bind the parties to it.
55. Now it may be noted that in this case, it is stated on p. 336 that the widow gave part of her property to each of her two daughters still retaining some of the property herself. On p. 338 it is stated we think that the document, read as a whole clearly shows that what the mother did was to accelerate the succession of her two daughters.
56. We consider that similarly in the present case the agreement accelerated the succession of the daughters, and therefore at the time of the agreement the daughters had more than a mere spes successionis with which to bargain. The agreement therefore complies with the criteria laid down in Rama Aiyar v. Narayanasami Aiyar reported in A.I.R. 1926 Mad, 609, at p. 611:
It is well established that a bona fide family settlement of disputes or doubtful rights is binding on all the parties to the settlement. The rule in Stapleton v. Stapleton 21 L.J. Ch. 434 and Williams v. Williams [1867] 2. Ch. 294. has always been applied in India, but where the object of the settlement is to effect a contingent, reversionary interest in the nature of a spes succession is the only way of doing it is by means of surrender, accelerating the reversion and converting its contingent nature into a vested interest and thus destroying its character as a spes successionis.
57. Reference was next made for the plaintiffs to Gauri Nath Kakaji v. Gaya Kuar A.I.R. 1928 P.C. 251, where it is stated at p. 1176(of 26 A.L.J.):
If a Hindu dies leaving two widows they succeed as joint tenants with a right of survivorship... Each can deal as she pleases with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner.
58. We consider that the action of the two plaintiffs in executing the agreement of 1st May 1898 comes within the words "each can deal as she pleases with her own life interest." The plaintiffs chose to give up their chance of obtaining a larger share of the estate on the death of their mother in return for the advantages of the annuity in the case of Mt. Budhi and the immediate enjoyment of one-fifth of the estate in the case of Mt. Dulari. Having made that agreement and acted on it, it is not now open to the plaintiffs to repudiate it.
59. The plaintiffs next relied on Bai Parvati v. Dayabhai Manchharam[1920] 44 Bom. 488. In this case a widow was in possession of the estate and she, along with her daughter the plaintiff, made a gift of part of the property to the defendants who were the minor sons of a deceased daughter. After the death of her mother the plaintiff sued to recover the property on the ground that the deed was invalid as it conveyed her chance of surviving her mother. The gift by plaintiff was held to be invalid because it was a transfer contrary to Section 6(a), T.P. Act, and there was no rule of Hindu law recognizing the validity of such a transfer which was of a mere spas successionis.
60. Now it is true that this case resembles the present case in the fact that the plaintiff was a party to the transaction to be set aside. But there are essential points of difference. In the case quoted there was an actual transfer. In the case before us we consider that the agreement did not amount to a transfer within the meaning of Section 5, T.P. Act, so far as the daughters were concerned. No daughter made any conveyance of property. What happened was that the mother made a transfer of her life interest in four parts of the property to her different daughters and the daughters agreed to that transfer by the mother, which accelerated their life estates in those parts. Further, the daughters agreed that on the death of any one of the three daughters the share of that daughter would go to her male issue if there was any male issue then alive. Such an agreement was quite a different matter from a transfer to any male issue. There was no transfer of the chance of succeeding to an estate, which would be invalid by Section 6(a), T.P. Act, nor was there any transfer of a spes successionis which would be invalid by Hindu law. There was merely an agreement between the daughters to enjoy their life interests in a certain way. The surrender of the mother caused those life interests to commence, and therefore the agreement dealt with actual life estates in being and not with the spes successionis at some future date. Another point of difference is that in the case quoted there was no question of a family settlement, but in the case before us the agreement settled the way the property was to be enjoyed by the family. Reference was also made to Amrit Narayan Singh v. Gaya Singh A.I.R. 917 P.C. 95 at p. 603 (of 45 Cal.):
A Hindu reversioner has no right or interest in present in the property which the female owner holds for her life. Until it vests in him on her death, should ha survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise; until than it is mere spes successionis.
61. The present ease is differentiated on two grounds: the action of the mother accelerated the life interests, and after the death of the mother the plaintiffs continued to act on the agreement. Another argument of the defence is that the plaintiffs are estopped under Section 115, Evidence Act, from setting up a claim contrary to their agreement. In executing that agreement the plaintiffs made a representation that they agreed to that division of the estate for the period of their lives, and that they would not put forward any claim on the death of their mother to a larger share of the estate. These representations have been acted upon by the parties and we consider that the plaintiffs are estopped from setting up their present claim.
62. We consider that both on the grounds of family arrangement and on the grounds of estoppel the case of the plaintiffs fails, and we allow the appeal of the defendants with costs and we dismiss the appeal and the suit of the plaintiffs with costs in both Courts.