D

MANU/UP/0007/1971
Equivalent Citation: AIR1971All29

IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 212 of 1957
Decided On: 02.01.1970
Appellants: Arjun Singh
Vs.
Respondent: Virendra Nath and Ors.
Hon'ble Judges/Coram:
Gyanendra Kumar and Gangeshwar Prasad, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Raja Ram Agarwal, Adv.
Case Note:
(i) Family - migration - the person has a permanent residence in one state but
for the purpose of his employment he is living in another state - it doe snot
amount to migration.
(ii) Family settlement - as long as the family have some property there will be
a possibility for future dispute - it is not sufficient to form an agreement for
family settlement.
JUDGMENT
Gangeshwar Prasad, J.
1. This is a plaintiff's appeal and arises out of a suit for possession in respect of four
shops and one third share in a house situate in Agra and for mesne profits. The
following pedigree, which is not in dispute, will be of help in a proper appreciation of
the facts of the case:
DAYA RAM
____________________|____________________________________
| | |
Lachman dead Balwant Dal C hand
= Mst. Kaushaya | |
______________|_________________ |
| | |
Nathi Lal (dead) Panna Lal (dead) |
| |
_______________________________|________ |
| | |
Virender Nath Brijendranath |
defendant no. 1 defendant no. 2 |
| | |
________________________ ______________ |_______ |
| | | | | |

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Narendra Sachendra Dharmendra Ravindra Nath Devendra Nath |
|
__________________________________________________ |
| | |
Kalawati Damodar Das Mst. C hameli (dead)
(predeceased Dal C hand) =Ranchhordas
=Pushpa Wati (dead) |
| Arjunsingh (Plaintiff)
Prem Wati

It would be seen that Dal Chand had a son, Damodardas, and two daughters, Smt.
Kalawati and Smt. Chameli. The case of the plaintiff, Arjun Singh, is that the property in
suit was owned exclusively by Dal Chand and upon his death, which took place in
August 1914, it devolved upon his two daughters because his son had predeceased him.
Both the daughters, according to the plaintiff, were Pardahnashin ladies and they had
been married outside Agra. The property was, therefore, being managed by Pannalal
and Nathilal, nephews of Dalchand, on behalf of the two daughters. It has further been
alleged that under an agreement dated September 2, 1914 the rent of the shops in suit,
which were all in the occupation of tenants, used to be realised by Pannalal and Nathilal
as agents of Smt. Kalawati and Smt. Chameli but the said agreement is not binding on
the plaintiff. Smt. Kalawati is said to have died in 1925 and Smt. Chameli on April 30,
1944 and the plaintiff claims to have succeeded to the property after Smt. Chameli's
death. It has also been stated by the plaintiff that Pannalal and Nathilal and, after their
death, Pannalal's sons, Virendra Nath defendant No. 1 and Brijendra Nath defendant No.
2, had been rendering some slipshod accounts of the realisations made by them from
the tenants and paying some petty amounts to Smt. Kalawati and Smt. Chameli but
since the death of the two daughters the defendants had only been postponing
settlement of accounts and, finally, they refused to hand over actual possession of the
property in suit to the plaintiff. This state of thing is said to have compelled the plaintiff
to institute the suit.
2. The claim of the plaintiff has been contested by both the defendants. Defendant No.
2 has pleaded that the plaintiff is not the son of Smt. Chameli but of the second wife of
Ranchhordas whom the latter married after the death of Smt. Chameli which took place
in 1926, that Damodardas, who predeceased his father Dal Chand, had given direction
to his wife to adopt a son and this direction was confirmed by Dal Chand; and that
under the authority to adopt given to Smt. Pushpawati she duly adopted Brijendra Nath
defendant No. 2 as a son to her deceased husband. He has also raised pleas of
estopped, acquiescence and limitation. The allegation of the plaintiff regarding Pannalal
and Nathi Lal having been in possession as agents has been repudiated and it has been
asserted that Brijendra Nath defendant No. 2 has been in possession for over 35 years
as owner. In the alternative it has been contended that Dal Chand died as a member of
joint Hindu family and the property in suit was joint family property, with the result that
after the death of Dal Chand it passed to the other co-parceners by survivorship and the
plaintiff has no title to it.
3 . Defendant No. 1 has filed a separate written statement which follows the line of
defence taken by defendant No. 2. The additional facts stated by him are that the
property in suit was thrown into the common stock and has been treated as joint family
property by all the coparceners and that under a will Dal Chand bequeathed some
moveable property to Smt. Pushpawati and her daughter Premwati besides confirming
the authority to adopt given to Smt. Pushpawati by her husband, Damodar Das.

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4. The learned Civil Judge framed the following issues on the basis of the pleadings of
the parties and the statement of their counsel under Order 10, Rule 2. Civil P.C.:
"1. Whether the plaintiff is the son of Mst. Chameli daughter of Dal Chand as
alleged?
2. Whether Dal Chand died as a separate member as alleged by the plaintiff and
whether property in suit is his self-acquired property as alleged?
3 . Whether the defendant No. 2 was adopted by the widow of Damodar Das
deceased as alleged and whether the adoption was valid?
4. Whether the suit is under-valued and the court-fee paid is insufficient?
5. Whether the suit is barred by time?
6. Whether the suit is barred by estopped and acquiescence?
7. Whether the suit is bad for non-joinder of necessary parties?
8. Whether the plaintiff is entitled to mesne profits, if so, at what rate?
9. To what relief, if any, is the plaintiff entitled?"
5. On the evidence led in the case the learned Civil Judge felt bound to hold that Smt.
Chameli survived till 1944 and did not die in 1926 as alleged by the defendants and that
the plaintiff is her son. Issue No. 1 has accordingly been decided in favour of the
plaintiff. On issue No. 2 as well the learned Judge has recorded a finding in favour of
the plaintiff. He has held that the evidence shows that Dal Chand had separated from
his brothers, that the property in suit was his separate property, that the sale deed by
means of which the four shops in dispute had been acquired were in the name of Dal
Chand and that there was no adequate nucleus of family funds or property which could
lead to the acquisition of the said shops. The issue has, therefore, been answered by
him in the affirmative. On issue No. 3 the finding of the learned Judge is against the
plaintiff and in favour of defendant No. 2. His conclusion is that "on the material on
record the finding must be that defendant No. 2 was duly adopted by Damodar Das's
widow Pushwati and also that it must be taken that she had the authority of her
husband to adopt." Issue No. 4 had been already decided as a preliminary issue by the
predecessor in office of the learned Judge and the deficiency in court-fee found by him
had been made good by the plaintiff. Issue No. 5 has been decided against the
defendants and the suit had been held to be within time. The plea which gave rise to
issue No. 6 has been held to have no force and that issue has also been decided against
the defendants. Similar is the case with issue No. 7. In view of the finding on issue No.
3, the findings of the learned Civil Judge on issues Nos. 8 and 9 are naturally against
the plaintiff and his suit has been dismissed. Having regard, however, to the fact that
the defendant failed on most of the pleas and their case about a second wife a
Ranchhor-das was found to be false and to the further fact that a letter purporting to
have been written by Ranchhor Das and filed in defence was found by the learned Judge
to be a forgery he directed that the parties shall bear their own costs.
6 . Before us the entire controversy centred round issue No. 3 which relates to the
factum and the validity of the adoption set up by the defendants. The learned counsel
for the defendants-respondents did not at all challenge the findings recorded in favour
of the plaintiff on issues Nos. 1, 2. 5. 6 and 7 and the appeal was argued before us on

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the footing that the findings on the aforesaid five issues may be accepted as correct. We
have, therefore, to confine ourselves to a consideration of the questions that form the
subject-matter of issue No. 3 which is, indeed, the basic issue in the case.
7 . The most important piece of evidence bearing on this issue is a registered
agreement, Exh. B14, executed on September 7, 1914, i.e. very shortly after the death
of Dal Chand who, it appears, died in August 1914. The executants of this agreement
were Smt. Kalawati and Smt. Pushpawati (the two daughters of Dal Chand) and
Pushpawati (widow of Damodar Das). Since much turns on the effect and implication of
this deed of agreement we reproduce below an English translation of the deed from the
paper book.
"We, Mst. Natho alias Kalawati. wife of Pandit Moti Lal, and Mst. Chameli, wife
of Ranchhor, daughters of Pandi Dal Chand and Mst. Pushpawati widow of
Damodar Das son of Dal Chand, caste Brahmin, resident of Bhairo Belanaganj,
Agra do declare as follows:
Pandit Dal Chand, our ancestor is dead and has left behind 4 shops situate in
Noori-Darwaza, Agra, bounded as given below and Provident Fund of about Rs.
5000/- besides debts and move-able goods and a memorandum by way of a
will has been found with Babu Ram Charan Das. Although Panditji deceased
could not duly complete the will in his life time we are gladly agreeable to be
bound by it and to act according to it, and we consider it our duty to be bound
by it. We, have, therefore, while in a sound state of body and mind, while in
proper senses, of our own accord and free will, do covenant and give in writing
that in accordance with the desire of Pandit Dal Chand deceased we shall be
bound to the following for ever:
(1) Mst. Pushpawati will be the owner in possession of the entire moveable and
Immovable property during her life time and shall meet her personal expenses
in Rs. 30/- p.m. In case some special expense has to be met, it shall be done
with the approval of Pannalal, nephew of Pandit Dal Chand deceased. The
income from the property of Panditii deceased, shall, after deducting the
expenses, be deposited. If at any time Mst. Pushpawati takes into adoption any
boy, according to the desire of her father-in-law Pandit Dal Chand deceased, he
shall be the owner in possession of the entire property under the guardianship
of Mst. Pushpawati and be legal representative of Pandit Dal Chand deceased.
Mst. Pushpawati, if she be alive, shall be the owner of the property under the
Sarbarakarship of Pandit Pannalal nephew of Pandit Dal Chand. In case both
Mst. Pushpawati and Premwati die, then from among Mst. Kalawati and Mst.
Chameli daughters of Pandit Dal Chand deceased, the one who remains alive
shall be the owner in possession for life. If they too die without leaving a male
heir, the property shall revert to the family of Pandit Dal Chand.
Boundaries of the 4 shops situate in Noori Darwaza. Agra bearing No. 2276:
East-- Chhetta gali.
West-- Shops of Kanhaiya Lal and Hari Singh.
South-- Public way.
North--Land pertaining to the shops, lane, thereafter house of Mst. Nazeer
Begum.

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 Written on 2-9-1914.
We have executed this agreement, so that it may serve as evidence and be of
use when needed. Left thumb impression of Mst. Kalawati wife of Moti Lal.
Left thumb impression of Mst. Chameli wife of Ranchhor.
Left thumb impression of Mst Pushpawati widow of Damodar Das.
Witnesses: Sd. Shyam Kishan son of Chunni Lal Brahmin, resident of Ramarauli
Katra,
Sd. Ranchhor Lal in urdu.
Sd. Kishan Deo Sharma."
The genuineness of this deed of agreement is not open to question and was, indeed not
questioned either in the trial court or before us. The preamble to this deed makes it
abundantly clear that Dal Chand left no will, and it only recites that Pandit Dal Chand
expressed some wish in regard to the course that his property should take after his
death in a memorandum which was found in the custody of one Babu Ram Charan Das.
The memorandum did not constitute a will and it has been specifically mentioned in the
deed of agreement that although the memorandum was "by way of his will" Pandit Dal
Chand could not duly complete his will during his life time. The memorandum is not on
record and defendant No. 2 nowhere pleaded that Dal Chand made a will or that the
memorandum constituted a will and took effect as such and that in the absence of that
will its terms may be ascertained from the deed of agreement Exh. 14. It is true that
defendant No. 1 stated in paragraph 17 of his written statement that Dal Chand left a
will whereby he gave some moveable property such as debts etc. to his son's widow,
Smt. Pushpawati, and also corroborated and repeated the permission of his son
Damodar Das to Smt. Pushpawati to adopt a son; but no evidence whatsoever has been
given in support of this allegation, and the contents of agreement Exh. B14 to show that
there was no completed will and that no moveable property was bequeathed by Dal
Chand to Smt. Pushpawati and to her daughter Premwati as alleged by defendant No. 1
in his written statement. The position, therefore, clearly is that it is not possible or
permissible to treat Exh. B14 as evidence of any will made by Dal Chand. While dealing
with issue No. 9 the learned Civil Judge has observed that the plea that Dal Chand made
a will with regard to the property in suit, which was raised only at the time of
argument, was "untenable as well as one that cannot be allowed to be raised." We
completely endorse the above observation. By means of the agreement under
consideration the executants themselves entered into some covenants respecting the
property left by Dal Chand and what can be said is that they believed that in entering
into those covenants they were carrying out the wishes of Dal Chand. It cannot, in our
opinion, be disputed that if the agreement can have effect that would be only as an
agreement between its executants and it does not either incorporate the terms of a will
or give shape to any directions or dispositions made in a will. It only purports to be a
document in conformity with the wishes of Dal Chand.
8 . That is about the effect of the document. But there is also one implication in the
document which, to our mind, is equally patent. Authority to take a boy in adoption
was, according to the agreement, conferred upon Smt. Pushpawati by Dal Chand and
the fact that no other source of authority was mentioned in it obviously implies that
there was no other source. Judging from the nature and the language of the document it
seems clear that it was not drafted in a careless manner, and attention was paid to

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details relating to the rights of the executants and of the boy who might be taken in
adoption by Smt. Pushpawati. We find it very difficult to conceive that if Smt.
Pushpawati had been directed or permitted by her husband Damodar Das, who had died
just a few months before the execution of this agreement, to adopt a son that fact could
have escaped mention, particularly when the wishes of Dal Chand in regard to the
adoption were specifically set out. The inference seems irresistible that till the date of
execution of this agreement nobody concerned with the transaction had any idea that
Damodar Das too had directed or authorised Smt. Pushpawati to take a son in adoption.
9-13. (After discussion of other documentary and oral evidence His Lordship
proceeded). On the basis of evidence of this character it would not, to our mind, be
possible to hold that the alleged permission of Damodar Das has been proved even if
the agreement Exh. B14 and the application Exh. 18 referred to above were not on
record. These documents, however, seem to us to be entirely destructive of the theory
of an authority to adopt given by Damodar Das and, at any rate, so strongly suggestive
of a contrary inference that oral evidence of only an unimpeachable and a most
satisfactory nature can displace that inference. The evidence of Jwala Prasad is very far
from being of that nature and, indeed, it is to our mind wholly unfit for reliance and
untrue.
14. Before adverting to the evidence relating to conduct with a view to see to what
extent, if any, the alleged adoption was accepted or recognised, we propose to examine
the direct oral evidence in regard to the factum of adoption. That evidence consists of
the testimony of two persons viz. D. W. 3 Jwala Prasad, whose statement in regard to
the authority to adopt we have already discussed and rejected, and D.W. 4, Laxmi
Narain. Both these witnesses deposed to the performance of ceremonies of adoption
and to their having been present on the occasion. The statement of Jwala Prasad
relating to the permission for adoption has been found by us to be altogether
unacceptable and positively untrue and we consider him to be a wholly unreliable
witness. We would, however, refer to one feature of his statement in regard to the fact
of adoption. He states in the examination-in-chief that at the time of the adoption
Pannalal made Brijendra Nath sit in his lap and gave him in the lap of Smt. Pushpawati
after saying "yeh mera larka to hai hee aaj se tumhara larka bhi hua". His statement
further is that after taking Brijendra Nath in her lap Smt. Pushpawati said "aaj se yeh
mera aur mere pati ka bhi larka hua". About the word "bhi" in the second sentence
quoted above it may be said that it refers to her "pati", but the meaning of the first
sentence clearly and explicitly is that according to the words used by Pannalal Brijendra
Nath remained his son even after the adoption although he (Brijendra Nath) became the
son of Smt. Pushpawati also. If this is what happened at the time of the adoption, then
complete severance of ties with the natural family and extinction of filial relationship
with the giver in adoption which is necessary for adoption did not take place. The acts
of giving and taking unaccompanied by any words might themselves have sufficed for
adoption, but if the words ascribed to Pannalal by this witness were also uttered by him
they became part of the act of giving and destroyed its efficacy for the purpose of
adoption. It may be of some significance to note in this connection that there are
documents on record, which will be referred to hereafter, showing that Brijendra Nath
made claims to the properties of both Pannalal and Dal Chand. The statement of Laxmi
Narain too is extremely unsatisfactory and, in our opinion, he too is a totally unreliable
witness. (After discussion of evidence of this witness His Lordship proceeded).
15. The learned Civil Judge has observed that it is not always necessary to have direct
evidence of authority to adopt and he has referred to Sri Kanchumarthi Venkata
Seetharama Chandra Rao v. Kanchumarthi Raja MANU/PR/0030/1925 and Prem Devi v.

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Shambhoo NathMANU/UP/0504/1920. The correctness of the observation made by the
learned Judge cannot be disputed. But neither the principle that both the factum of
adoption and the authority to adopt may be proved by circumstantial evidence alone i.e.
by conduct, repute and recognition etc. nor the consideration that evidence naturally
gets lost with the passage of time would justify the acceptance of an oral testimony
which merits rejection on account of its inherent improbability or intrinsic defects. The
scantiness of direct evidence may certainly, in a fit case, be regarded as having been
made up by circumstantial evidence of a convincing nature; but a direct evidence that
not only fails to inspire confidence but also appears to be definitely untrue cannot be
accepted by reason of the consideration that no better evidence might have remained
available because of lapse of time. It is the paucity of direct evidence and not its falsity
that may be supplemented or filled by circumstantial evidence. The reason why we do
not accept the oral evidence either as to the fact of adoption or as to the authority to
adopt is not that it is insufficient but that it does not at all impress us as true and it
proceeds from witnesses whom we do not consider trustworthy. We may repeat that so
far as the evidence relating to the authority to adopt is concerned, it is also negatived
by the agreement Ex. B14.
1 6 . We may now examine the evidence regarding the course of conduct of persons
whose conduct may be relevant in determining whether an adoption took place and
whether Smt. Pushpawati had the requisite authority to adopt. The learned Civil Judge
has referred in his judgment to most of this evidence which, according to him, shows
that from 1923 onwards Brijendranath gave himself out as the adopted son of Damodar
Das and was also treated and accepted as such by others, and the learned counsel for
the defendants respondents too referred to that very evidence and to no other in his
arguments before us. (After discussion of some evidence on this aspect His Lordship
proceeded).
17. It is true that Smt. Kalawati and Smt. Chameli admitted the fact of adoption in their
application Exh. B-18 and the statement made in that application is admissible in
evidence against the plaintiff; but still it is not the statement of predecessors in interest
of the plaintiff because the interest that he claims is derived not from the holder of life
estate but from the last male owner. The statement cannot, therefore, be treated as an
admission against the plaintiff. Against Brijendranath defendant, however, there are his
own statements in which he not only described himself as son of Pannalal but claimed
as such the properties of Pannalal and Nathilal. Smt. Kalawati and Smt. Chameli are
dead and no question of any explanation of the statement in Exh. B18 by the makers
thereof arises. Brijendranath is, however, himself the main defendant in the case and it
was incumbent upon him to explain the admissions and the circumstances in which they
came to be made. Besides that, he is the most competent person to state how he has
been living and conducting himself since he attained the age of discretion and how
others have been treating him. But he has abstained from entering into the witness box
and that must give rise to an inference adverse to him. The explanation of any
admission or conduct on the part of a party must, if the party is alive and capable of
giving evidence, come from him and the court would not imagine an explanation which
a party himself has not chosen to give. Further, an acceptable explanation does not
appear to be conceivable. So far as the application of Smt. Kalawati and Smt. Chameli
is concerned it may easily be that the ladies were given to understand or believed that
their father had left the memorandum spoken of in the agreement Exh. B14, that an
adoption in accordance with the wish of their father was valid, that Smt. Pushpawati
had actually taken Brijendranath in adoption and that it was not open to them to lay any
claim to the property of Dal Chand in face of the agreement Exh. B14. An adoption may
certainly be said to have been in contemplation at the time of the execution of Exh. B14

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and the likelihood would thus be that it would take place but even according to the
evidence led by the defendants the adoption was postponed for about four years. Could
it not be that an agreement having been obtained from the daughters who were living in
distant places with their husbands the idea of an actual adoption was given up the
properties of Dal Chand, Pannalal and Nathilal were all enjoyed and treated on the same
footing, Brijendranath was not made to lose his share in his father's property and in the
property of his uncle, Nathilal, who had no son, and Brijendranath was only described
as the adopted son of Damodar Das when the need for such a description arose in order
to support a claim in respect of Dal Chand's property? We think that the evidence
relating to the conduct of the persons concerned and to acceptance and recognition of
the alleged adoption is such that the adoption cannot be said to have been established.
Even if, however, the fact of adoption is regarded as inferable from the circumstances of
the case, there can be no doubt that a finding that Damodar Das had authorised Smt.
Pushpawati to adopt a son cannot be justified. It cannot be denied that an inference as
to the existence of the authority necessary for validating an adoption may also arise
from a long course of conduct, but the conduct which may give rise to that inference
must throughout be characterised by uniformity and consistency. Here, not only is that
characteristic lacking but there are two documents so strongly militating against that
inference that it does not seem possible to raise it. These documents are, as we have
noted, Exh. B-14 and Exh. B18 one of them of a date prior to the alleged adoption and
the other of a date subsequent to it. These documents also falsify the oral evidence led
in support of the authority to adopt. As a result of this discussion we hold that
Brijendranath was not adopted as a son of Damodar Das and in any case the adoption,
if it took place, was invalid because Smt. Pushpawati had no authority to adopt.
18. On behalf of the defendants-respondents it was also submitted before us that since
Dal Chand was employed in Bombay and in the Bombay State a widow may adopt
without the authority of her husband the adoption made by Smt. Pushpawati did not
need the authority of Damodar Das. We have held that there was no adoption and the
submission does not, therefore, require consideration. However, it is devoid of all force
and, for a variety of reasons, it has to be rejected. Firstly, the plea that the adoption
was governed by Hindu Law as prevalent in the Bombay State was not taken before the
trial court and the trial of the suit proceeded throughout on the footing that the
adoption was governed by the Hindu Law as administered in this State. Secondly, the
plea involves a question of fact and it cannot, consequently be allowed to be raised at
this stage. Thirdly, both Damodar Das and Smt. Pushpawati lived at Agra and the
adoption too is said to have taken place there and the fact that Dal Chand lived in
Bombay is not at all relevant. Fourthly, even in the case of Dal Chand the mere fact that
he was living in Bombay in connection with his employment did not amount to
migration to the Bombay State and to giving up residence in this State. And fifthly,
where a Hindu family migrates from one State to another, the presumption is that it
carries with it its personal law. i.e., the laws and customs as to succession and family
relations prevailing in the State from which it came and this presumption has to be
rebutted by showing that the family has adopted the law and usages of the State to
which it has migrated -- vide Mulla's Principles of Hindu Law page 89 (Twelfth Edition)
--and there is nothing on record to rebut the presumption.
19. It was then contended for the defendants-respondents that the agreement embodied
in Exh. B14 amounted to a family settlement and as such it is binding on the plaintiff. It
would appear from the judgment of the learned Civil Judge that this plea was attempted
to be raised at the stage of argument before him but the learned Judge did not allow it
to be raised and observed:

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 "Another point raised was that the agreement Exh. B14 operated as a family
settlement binding on reversioners. This plea also involves questions of fact
and when it is not raised in that way in the written statement it is difficult to
entertain it at the stage of arguments. Various questions of fact would be
relevant before it can be stated that the family settlement is a bona fide one so
as to bind the reversioners. In fact during arguments it was practically
undisputed that this settlement in which nothing has been reserved for the
widow cannot be supported as a bona fide family settlement in the interests of
estate binding on the reversioners. The only ground on which it was sought to
be supported is that it should be regarded as a surrender in favour of a stranger
with consent of the nearest reversioners alive at that time. But qua this position
also the difficulties are: (1) that the plea was never raised (2) it is doubtful that
there can be said to be a total surrender because the widow gets property back
after Pushpawati and Premwati if there has been no adoption (3) though there
is a Calcutta case on the point the position that surrender to a stranger can be
supported as transaction of surrender in favour of the reversioners and a
transfer by them to the stranger is not free from difficulty. I am therefore of the
opinion that this question too cannot be allowed to be raised at this stage.
Prima facie I also think that the transaction cannot be upheld by treating it as a
valid surrender followed by a transfer by Pannalal, Nathilal and Hira Lal in
favour of Pushpawati."
The learned counsel urged that the material necessary for the decision of the question
raised in this plea is on record and that the plea only involves a determination of the
true legal character of the agreement. We propose to deal with the plea. The first
question to be considered in relation to this plea is whether Exh. B14 amounts to a
family settlement. The nature and scope of this family settlement, the elements that go
to constitute it, the objects for which it may be entered into, and the things that may
form the consideration for it and thus support in law have all been laid down and
explained in numerous decisions, but we may refer only to Maturi Pullaiah v. Maturi
Narasimham MANU/SC/0328/1966 : AIR1966SC1836 ; Ram Charan Das v. Girja Nandini
D e v i MANU/SC/0358/1965 : [1965]3SCR841 and Mst. Dasodia v. Gaya Prasad
MANU/UP/0036/1942 : AIR1943All101 .
Let us now examine the circumstances in which Exh. B14 was executed and the
purposes it was intended to effectuate. There is nothing to indicate that there was any
dispute amongst the members of the family or that any claim and counter claim relating
to the property of Dal Chand had been put forward, and it does not at all appear that
any future dispute against which the property of Dal Chand had to be preserved or from
which the family had to be saved was apprehended. There is also nothing to suggest
that the peace of the family was in jeopardy and there was any danger to the harmony
and amicable relations amongst its members. Further, the parties to the agreement were
fully cautious of the fact that the memorandum referred to in Exh. B14 did not amount
to a will and it possessed no legal efficacy. The argument on behalf of the defendants
respondents was that although there might have been no present dispute to be settled
or likely future dispute to be avoided the possibility of some dispute at some future
point of time could not be ruled out and that possibility should also be taken into
account. Such a possibility, we may say, will always be there so long as a family owns
some property, but it is not that remote and hypothetical possibility that is to be
considered in judging whether an agreement partakes of the nature of a family
settlement. If that were; so, all agreements, irrespective altogether of their nature, by
members of a family -- and 'family' has a wide connotation in this context -- would be
family settlements. Such a view of family settlements does not appear to be correct. We

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are fortified in our opinion by the decision of their Lordships of the Supreme Court in
Potti Lakshmi Perumallu v. Potti Krishnavenamma MANU/SC/0308/1964 : [1965]1SCR26
. The deed Exh. B14 does not to our mind, fulfil the character of a family settlement.
20. It has also to be remembered that a family settlement entered into by the holder of
a life estate to which the reversioner is not a party and to which he has not in any
manner assented does not stand on the same footing as a family settlement to which
the reversioner is a party or to which he has in some manner given his assent. A family
settlement of the former kind has to be prudent and reasonable also besides being a
bona fide settlement, before it can bind the estate and the reversioner. The question of
prudence and reasonableness may not enter into consideration if the binding effect of a
family settlement only on the parties thereto has to be decided, but having regard to the
nature of the estate possessed by the holder of a life estate under the Hindu Law this is
a matter of utmost importance in deciding whether a family settlement binds a person
who was not a party to it, does not claim through the person who was a party and has
not assented to it. In Phool Kuar v. Prem Kuar MANU/SC/0076/1952 : [1953]1SCR793
their Lordships of the Supreme Court observed:
"The question whether the transaction is a bona fide settlement of a disputed
right between the parties depends on the substance of the transaction and in
order that it may bind the estate it should be a prudent and reasonable act in
the circumstances of the case. As observed by their Lordships of the Privy
Council in Ramsumran Prasad v. Shyam Kumari 49 IA 342 : (AIR 1922 PC 356),
the true doctrine is laid down in Mohendra Nath v. Shamsunnessa Khatun 21
Cal L J 157 : AIR 1915 Cal 629) decided in 1914, and it is that a compromise
made bona fide for the benefit of the estate and not for the personal advantage
of a limited owner will bind the reversioner quite as much as a decree against
her after contest."
The applicability of the principle laid down by their Lordships is not confined to
compromises in suits and it applies with equal force also to family settlements which
are not made in or in connection with any suit. Reference in this connection may be
made to Mulla's Principles of Hindu Law page 287 (Twelfth Edition). That there is a
difference between the position of a person who is a party to a family settlement or
claims through a party to it and that of a person who is neither a party nor claims
through a party to it has been pointed out by the Supreme Court in Sahu Madho Das v.
Mukand Ram MANU/SC/0132/1955 : AIR1955SC481 ,
21. Was then the agreement Exh. B14 prudent and reasonable--judged not from the
point of view of benefit to Smt. Kalawati and Smt. Chameli but from the point of view of
benefit to the estate? The answer seems to us to be clearly in the negative. The
daughters, according to the recitals in the deed, knew that the memorandum referred to
in Exh. B14 did not amount to a will and could not operate as such. The result
obviously was that the property of Dal Chand would have gone to them as daughters
and then to their sons as reversioners. They, however, gave no thought to or ignored
the legal position altogether and in their desire to respect the wishes of their deceased
father they executed an agreement embodying those wishes. For them prudence,
reasonableness and benefit to the estate were entirely out of question and the sole
consideration guiding them was to let things be as their father desired them to be in the
memorandum which, they believed, had been made by him. Their minds had not at all
gone to the making of the covenants incorporated in Exh. B14; they had only given the
shape of an agreement to what they believed to have been the wishes of their father.
Their attitude may have been praiseworthy and their act laudable, but it was not a

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prudent or reasonable act or for the benefit of the estate as required under the Hindu
Law. It was obvious that Smt. Pushpawati, the widow of a predeceased son, could have
no right to the property of Dal Chand. It was also obvious that Dal Chand could not
authorise Smt. Pushpawati to take a son in adoption and that an adoption on the basis
of such authority could not be valid. Further, even in the event of a valid adoption by
Smt. Pushpawati, the adoption could not have had the effect of divesting Smt. Kalawati
and Smt. Chameli of the interest which had already vested in them respecting such
property of Dal Chand as was his self-acquired and exclusive property, and the finding
of the learned Civil Judge is that the four shops in dispute were his self-acquired
property. As the shops were not ancestral or coparcenary property, Damodar Das had
no interest in them at the time of his death. As such Smt. Kalawati and Smt. Chameli
would have remained owners of the shop in suit and their rights would have remained
wholly unaffected by even a valid adoption by Smt. Pushpawati. We may refer in this
connection to Krishnamurthy Vasudeorao Deshpande v. Dhruwraj MANU/SC/0372/1961
: [1962]2SCR813 where their Lordships of the Supreme Court held:
"The principle of relation back applies only when the claim made by the
adopted son relates to the estate of his deceased father ... ... ... ... ... ... When
succession to the properties of a person other than an adoptive father is
involved, the principle applicable is not the rule of relation back but the rule
that inheritance once vested could not be divested."
Now, Smt. Kalawati and Smt- Chameli were free to divest themselves of their own
interest in the property of their father and an agreement by which they did so might
have been binding against them, but the question is whether it would bind the estate
and the reversioner. It does appear that they did not care even for their own interest in
the property but their indifference towards their own interest would only deprive the
agreement all the more of a binding effect on the reversioner. That they did not act
from any motive of advantages to themselves would not at all matter if they acted in
utter disregard and to the detriment of the interest of their estate. What would have
been the result if they had not entered into the agreement Exh. B14? The property
would have remained theirs and the plaintiff would have succeeded to it after their
death. The memorandum was not a will and even if there were a will of Dal Chand there
could be no valid disposition thereunder in favour of a person who might be adopted by
Smt. Pushpawati if she so chose and under an authority which Dal Chand was not
competent to confer. We are, therefore, clearly of the opinion that the agreement
incorporated in Exh. B14 was imprudent, unreasonable and prejudicial to the estate and
it does not in any manner affect the rights of the plaintiff. We may also observe here
that Exh. B14 was not an agreement by which an adoption which had already taken
place was accepted as valid but an agreement by means of which an invalid authority
for any adoption was virtually sought to be conferred by persons totally incompetent to
do so.
22. There is nothing to indicate that there was any ratification of the agreement Exh.
B14 on the part of the plaintiff. The mere fact that he filed this suit in 1952 although
Smt. Chameli had died in 1944 cannot amount to ratification. It is necessary to bear in
mind the observations of their Lordships of the Supreme Court in T. B. R. Subbu
Chetty's Family Charities v. M. Raghava Mudaliar AIR 1961 SC 797 that the principle of
election or estopped or ratification must be applied with due circumspection. Here no
benefit whatsoever was taken by the plaintiff and, in fact, no benefit could ever accrue
to him under the terms of Exh. B14 in the event of an adoption by Smt. Pushpawati. No
question of ratification, therefore, arises.

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23. For the reasons discussed, the plaintiff is entitled to a decree for possession of the
properties in suit. He is also entitled to a decree for mesne profits for a period of three
years preceding the date of the suit and also for pendent lite and future mesne profits
till the date of delivery of possession to the plaintiff. The learned Civil Judge has given
no finding as to the amount of mesne profits. That, however, will be done in
proceedings for the preparation of a final decree for mesne profits.
24. In the result the appeal is allowed with costs, the decree of the learned Civil Judge
is set aside and the suit of the plaintiff for possession of the properties in suit is
decreed. The plaintiff is also granted a decree for mesne profits against defendant No. 2
for a period of three years preceding the date of suit and for pendent lite and future
mesne profits. The decree for mesne profits, however, is only a preliminary decree. The
amount of mesne profits payable to the plaintiff by defendant No. 2 shall be determined
by the trial court and a final decree in respect of the amount due shall be passed in
favour of the plaintiff against defendant No. 2 on payment of requisite court-fee.

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