JUDGMENT Sen, J.
1. The suit which has given case to this appeal was for a declaration that certain property situate in mouza Belwa was owned and possessed by the plaintiffs and that the defendants had no title to the same. The plaintiffs alternatively claimed possession.
2. Bhagwan Dat Pande had three sons: Narayan Dat Pande, Shankar Dat Pande and Nageshar Dat Pande. Plaintiffs 1 to 3 are the sons of Nageshwar Dat Pande and plaintiff 4 is the widow of a predeceased son. Defendants 2 to 5 are the daughters' sons and son-in-law of Narayan Dat Pande in whose favour the latter executed a deed of gift of either the entire property in dispute or of a substantial portion thereof.
3. Bhagwan Dat Pande was the member of a joint family with his three sons. After his death a disruption ensued. Narayan Dat Pande undoubtedly separated from his brothers, but it is not clear whether any separation took place between Nageshar Dat Pande and Shankar Dat Pande. It is not improbable that Shankar Dat Pande lived in commensality with Nageshar Dat Pande upon the death of Shankar Dat Pande although the name of his widow Mt. Lakhpati was recorded against his share in the revenue papers. It is not improbable that she continued to live jointly with Nageshar Dat Pande and his sons.
4. On Shankar Dat Pande's death dissension arose between Nageshar Pande and Mt. Lakhpati Parain on the one side, and Narayan Dat Pande on the other. An ejectment suit was instituted by Narayan Dat Pande, defendant 1, against Nageshar Dat Pande and Mt. Lakhpati Parain in the Court of revenue. Narayan Dat Pande claimed to be the exclusive owner of certain sir plots and sought to eject Nageshar Dat Pande and Mt. Lakhpati Parain on the allegation that they were merely his tenants-at-will. The defendants to that suit contended that they were co-owners of the property with Narayan Dat Pande and were not tenants at all. By way of relation Nageshar Dat Pande and Mt. Lakhpati Parain instituted a regular suit in the Court of the Munsiff of Deoria against Narain Dat Pande for a declaration that they were the owners in possession of the two-thirds of sir and khudkast lands detailed at the foot of the plaint appertaining to a 9 annas 17 gandas odd of zamindari share in mouza Belwa and that the share of the defendants was no more than one-third. The parties settled their differences by a compromise dated 27th March 1923, the material terms of which as incorporated in the decree were as follows:
In the above suit the parties have entered into a compromise, under which it has been settled that the plaintiffs' claim shall be decreed in respect of two shares, and that one share shall be allotted to Narain Dat Pande defendant. But Narayan Dat Panda shall get all the sir lands in his lot. A detail of it has been given below. If there is any deficiency in the sir land, it shall be made good from the sir land of the plaintiffs. Entry will be made in the khewat in the same way i.e. two sharer will be recorded in the name of the plaintiffs and one share in the name of the defendant as per detail given below. The papers in the Collectorate will be prepared accordingly. Detail of the lands of the parties is attached to this compromise.
5. Separate lots were formed. The plots assigned to Narayan Dat Pande with their areas were set out separately from those given to Nageshar Dat Pande. No separate lot was formed of the plots assigned to Mt. Lakhpati Parain and it was probably intended that her share in the property should be included in the lot of Narayan Dat Pande.
6. The petition of compromise was signed by the four sons of Nageshar Dat Pande and was duly verified by Mt. Lakhpati Parain. Nageshar Dat Pande appears to have died before the compromise. The compromise was also signed by Narayan Dat Pande. He stated in writing that he agreed to the phat bandi and also agreed to Raghubir Dat Pande and others being given two shares in the khewat. It was further stipulated between the parties that after the death of Mt. Lakhpati Parain the property would continue to remain in possession of Raghubir Dat Pande and others and that Narayan Dat Pande would have nothing to do with it.
7. The immediate effect of the compromise was that Narayan Dat Pande got the bulk of the sir plots appertaining to 9 annas and odd share of mouza Belwa which was far in excess of his legitimate share.
8. Mt. Lakhpati Parain died in December 1923, Narayan Dat Pande in breach of the agreement referred to above applied to the revenue Court for entry of his name against half of the zamindari share, sir and khudkasht, etc., which stood recorded in the revenue papers in the name of Mt. Lakhpati Parain. Raghubir Dat Pande and others protested, but the revenue Court overruled their objections and ordered mutation of names in favour of Narayan Dat Pande on 27th March 1927. Following upon this event, Narayan Dat Pande executed a deed of gift in favour of defendants 2 to 5.
9. These are the facts which led to the present suit. The plaintiffs' claim is founded upon the compromise dated 27th March 1923, the terms of which have been set out above.
10. The defendants contested the suit upon the ground that the compromise was vitiated by fraud, that it offended against Section 6, T.P. Act, being an agreement to transfer merely a naked possibility of succession to the estate of Nageshar Dat Pande and that the said compromise could not prevail against the rights of Narayan Dat Pande which had come into existence by the death of Mt. Lakhpati Parain.
11. Neither of the Courts below has recorded a finding on the question as to whether Shankar Dat Pande was separate from his brothers or was joint with Nageshar Dat Pande. If Shankar Dat Pande was separate, his estate devolved upon his widow and during her lifetime, Narayan Dat Pande had only a right of expectancy in the said property. Under the Transfer of Property Act:
the chance of an heir apparent to succeed to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other near possibility of a like nature, is not property as can be validly transferred. The possibility of a Hindu reversioner to succeed to the estate of the last male holder on the cessation of the limited estate of an intermediate female holder is inalienable under Section 6-A, T.P. Act. It is settled law that a Hindu reversioner cannot bind his expectant interest or his future rights: Sham Sundar v. Achham Kumar [1899] 21 All. 71; Bahadur Singh v. Mohur Singh [1902] 24 All. 94; Venkata Naraina v. Subbammal A.I.R. 1915 P.C. 124 and Janaki Ammal v. Narayana Swami A.I.R. 1916 P.C. 117.
12. The Court of first instance did not examine the nature and scope of the compromise. It did not deal with the question whether the compromise directly or indirectly amounted to an alienation of a more naked possibility of succession, Is did not try the larger question whether the compromise operated as, and was intended to be, the record of a family arrangement. There was still another aspect of the case which was not considered by the trial Court. Was not Narayan Dat Pande precluded by his conduct from questioning the legality and validity of the compromise?
13. The trill Court held on the evidence that the question of the compromise by Narayan Dat Panda was proved by evidence of unimpeachable character. Narayan Dat Pande had pleaded fraud but had failed to make it out. Upon these grounds the trial Court gave the plaintiffs a decree.
14. The lower appellate Court has not traversed the finding of the trial Court but has reversed the decision upon three grounds: (1) In the lifetime of Mb. Lakhpati Parain, Nageshar Dat Pande had a mere chance of succession. The compromise created no rights in favour of the plaintiffs inasmuch as it amounted to a contract, surrender or disposal with reference to such a chance; (2) the compromise in question was not of the nature of a family settlement:
There was no dispute with respect to proprietary rights of Shankar and there was nothing to be settled about it.
15. The dispute which terminated in the compromise related to certain sir and khudkasht lands and not to proprietary rights of Shankar. (3) There was no estoppel against the defendants.
16. The judgment of the lower appellate Court is clearly wrong and cannot be upheld.
17. The compromise did not purport to be and was not intended to operate as a transfer of spes successionis. There appears to have been a cloud of uncertainty as regards the legal position of Mt. Lakhpati Parain. It was not clear whether her husband was joint with Nageshar Dat Pande or was separate from him. Unless her husband at the time of his death was separate from his brother, she could not be said to be in possession of his estate as a limited owner and the brothers could not be said to have a right in expectancy in his estate. Indeed, the compromise does not purport to alienate any right in expectancy. In Joydurga Dasi v. Saroj Ranjan Sinha A.I.R. 1929 P.C. 214, which was decided on 11th June 1929, their Lordships of the Judicial Committee made the following observation:
But it was contended that the ekrarnama was not binding upon the appellant at all: it was, in the event which had happened, no more than a grant in favour of the respondants, and while still a mere expectancy, of the interest in Sarat Kumari'a moiety to which under the will the appellant, by the operation of the jus accrescendi, might become entitled on her sister's death in her own lifetime: it was accordingly void on the principle enunciated in the decisions of the Board in Harnath Kuar v. Indar Bahadur Singh A.I.R. 1922 P.C. 403 and Annada Mohan Roy v. Gour Mohan A.I.R. 1923 P.C. 139, with reference to the attempted disposition of his expectancy by a presumptive reversioner during the lifetime of a Hindu widow. Their Lordships were not impressed by this contention of the appellant in support of which, as was admitted, no authority could be found.
18. "Property" has not been defined in the Transfer of Property Act. Assuming that the interest of the Hindu reversioner is property, its transfer is clearly interdicted by the imperative provision of Section 6-A, T.P. Act. But no such transfer was intended to be made or has been made under the compromise before us. Indeed, the compromise does not imply a definite change of legal relation to any property in praesenti or in future. In Barati Lal v. Salig Ram [1915] 38 All. 107, a claim was put forward by Barati Lal to the property of one Bhagga Mal as the person entitled to it upon the death of Bhagga Mal's daughter-in-law. That claim was denied by Mt. Mohan Dai, daughter of Bhagga Mal, who asserted that her father was separate and that she was entitled to succeed to the property. The dispute resulted in the execution of a document by Barati Lal for a consideration of Rs, 5,000 by which he abandoned all his claim to the estate of Bhagga Mal and recognized the title of Mt. Mohan Dei as absolute owner. It was held that the transaction was not a transfer of reversionary rights within the meaning of Section 6, T.P. Act. In Muhammad Hashmat Ali v. Kaniz Fatima [1915] 13 A.L.J. 110, it was held by Richard, C.J. and Banerji, J., that there was nothing illegal in a person for a good consideration contracting not to claim in the event of his becoming entitled on the decease of a living person.
19. The compromise was clearly of the character of a family settlement. The nature and scope of a family arrangement does not appear to have been properly understood or appreciated by the appellate Court. Family arrangement is founded on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title was Rani Mewa Kunwar v. Rani Hulas Kunwar [1873] 1 I.A. 157. A family arrangement is in no sense a transfer of property, for no right, vested or contingent is conveyed by one party to another. As stated already the arrangement proceeds upon the assumption that one or other of the claimants has an antecedent title to the property in whole or in part or in unequal proportions and the entire scheme rests not upon the transfer of a right but upon the recognition of a claim
20. The true character of the transaction appears to us to have been a settlement between the several members of the family of their dispute, each one relinquishing all claim in respect of the property in dispute other than that falling to his share and recognizing the right of the others allotted to them respectively: Oudh Bekari Lal v. Rani Mewa Kunwar [1865] N.W.P.H.C. 82. The acknowledgment of the claim of one party necessarily involves the abandonment of the claim by another but this is not equivalent or tantamount to a transfer.
21. Where the transaction was intended to operate as a transfer, the formalities enjoined by the Stamp, Registration and Transfer of Property Acts have to be complied with. The imperative requirements of these statutes cannot be evaded or displaced by the parties choosing to describe the document embodying the transaction as a family settlement when, in truth and substance, it was either a transfer of property or a deed of partition.
22. It may be assumed that the previous dispute between the parties did not extend to the entire estate of Shanker Dat Pande but was confined to certain sir and khudkasht plots relating to his share. The lower appellate Court is of opinion that in the absence of a dispute relating to the whole estate there can be no valid family settlement. The existence of a doubtful claim is essential for a family settlement but the existence of a dispute or controversy in proesenti is not. A family settlement may be supported on the ground of maintaining peace and goodwill amongst the members of the family, for the preservation of the family honour or of the family property and for the avoidance of disputes and litigation in future.
23. We have already noticed that Narain Dat Pande obtained as the result of the compromise a larger share in the sir land than what he was legitimately entitled to. He agreed, however, not to lay any claim to the property which stood recorded in the name of Mt. Lakhpati Parain upon the latter's death. Narain Dut Pande retains the benefit of the compromise and continues to be in possession of the entire sir land allotted to him. Now that Mt. Lakhpati Parain is dead, Narayan Dat Pande repudiates that portion of the compromise which hurts his legal rights under the Hindu Law of succession and wants to take possession of the property which he had agreed to abandon. Where a reversioner for good consideration agrees not to lay claim to a property when the succession opens out, he must in equity be held bound by that agreement. This view was supported in principle by the decision of the Privy Council in Kanhaiya Lal v. Brij Lal A.I.R. 1918 P.C. 70 (at 496 of 40 All.) which has been followed by this Court in a case similar to the present (Moti Shah v. Gandharap Singh A.I.R. 1926 All. 715. The case of Fateh Sing v. Rukmani Ramanji Maharai A.I.R. 1923 All. 387 has been cited to us by the respondent. This was a case of an alienation by a Hindu widow. It was assented to by the reversioner. The facts of this case therefore are easily distinguishable. Narayan Dat Pande had clearly agreed in consideration of his being allowed to own and enjoy the whole of the land, sir khudkasht land appertaining to the 9 annas and odd share not to claim any share in the property of Shankar Dat Pande upon the death of Mt. Lakhpati Parain. The agreement in question was valid in law and could be specifically enforced. Narayan Dat Pande is bound by this agreement. He is estopped in law from questioning it.
24. The result is that we allow the appeal, reverse the decision of the lower appellate Court and restore that of the Court of first instance with costs throughout, including in this Court, fees on the higher scale.