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Judgment
Varadaraja Iyengar, J.—This appeal is by the 1st Defendant and arises out of the judgment and decree in O.S. No. 27 of 1123 on the file of the District Court of Anjikaimal. That was a suit filed by the 1st Respondent Robert J. David to set aside Ext. VIII release-deed No. 1189 of 1113 dated 9-4-1938 and for partition of his l/15th share in the plaint A and B items. The court below allowed the suit to certain extent and hence this appeal.
The Plaintiff and Defendants 3 to 8 are the five sons and two daughters of the 2nd Defendant Plamena and Joseph David, deceased. This Joseph David had two elder brothers Isaac David, deceased and Elias David who is the 1st Defendant in the case. These three brothers were the sons of David Isaac David one Rebecca Ezechiel Sasoon and belonged to the community of white Jews in Cochin.
The 2nd Defendant was originally before her conversion to Christianity, known as Kali and belonged to the community of Ezhavas and one of the questions in controversy in the case is whether the difference in community between the 2nd Defendant and Joseph affected the validity of their union and legitimacy of their offspring. But one thing was certain; the relationship, subsequent to that union, of Joseph with his brothers and parents was not as cordial, as otherwise it must have been.
On the death of the mother, the 1st Defendant applied for probate of a will dated 5-2-1934 alleged to have been executed by her, before the court of the Subordinate Judge, Cochin, as O. P. No. 7 of 1936. Thereupon, Joseph entered careat, disputing the genuineness of the will on the basis of the mother''s insanity. The 1st Defendant retorted by saying that Joseph the caveator was for himself insane. Pending enquiry, Joseph died on '' (May) 1957 Tray-Co. D.F./11(1) 19.5-1937. The Defendants 2 to 8 and the Plaintiff then got themselves impleaded as Joseph''s legal representatives to carry on the contest in the probate proceedings but subject only to the objection of the 1st Defendant as to their status.
The mutter wild however ultimately compromised on 9-4-1938 between the 1st Defendant on the one side and the Defendants 2 to 4 on the other, the 2nd Defendant mother representing the Plaintiff and Defendants 5 to 8 then minors, for the purpose, with sanction of court specially, obtained. Under this compromise arrangement Defendants 2 to 4, the 2nd Defendant acting for herself and her minor children, the Plaintiff and Defendants 5 to 8 executed three'' separate releases of all their claims through Joseph, to properties situate respectively in Cochin State, British Cochin and Travancore in favour of the 1st- Defendant Elias and his brother Isaac, Ext. VIII which is being impugned in this case being the release in respect of the properties in the Cochine State.
In lieu, thereof the 1st Defendant gave up in favour of the Defendants 2 to 8 his ownership rights over certain property at Always where Joseph and his family had been in residence vide Ext. LXXI dated 8-4-1938 and also passed on to them a sum of Rs. 21.000, to be taken by them in proportion. Probate of the will was in due course issued under Ext. II order dated 12-4-1938 and based on this order, the Anjikoimal District Court issued its own probate certificate under Ext. XII order dated 8-11-1938.
The Plaintiff attained majority on 28-2-1120 corresponding to 14-10-1944 and this suit was laid within 3 years thereafter on 14-2-1123, as originally mentioned for ignoring Ext. VIII release and for partition of the Plaintiff''s share. The plaint averred that the action of the mother 2nd Defendant in executing Ext. VIII on behalf of the Plaintiff was wanting in authority and that the 1st Defendant had also suppressed information regarding the true extent of properties involved in the dispute and thereby dishonestly induced the Defendants 2 to 4 to part with very valuable rights for the insignificant amount of Rs. 21,000.
According to the Plaintiff, the 1st Defendant had no profession of his own and acquired every property standing in his name with the help of the corpus or income of the properties or funds of the mother of which he had been left under '' management for considerable time. The 1st Defendant had again brought off the adult Defendants 2 to 4, so as to entail in the result the sacrifice of the other minor sons'' interests. The Plaintiff was therefore entitled to work out his proper share in his father''s inheritance consequent of the death of his mother. The properties available for division were classified into two schedules, A and B attached to the plaint.
A schedule items 1 to 17 consisted of immovable properties valued at Rs. 90,000 while the B schedule represented stocks and shares in Cochin standing in the name of the 1st Defendant along with other valuables estimated at Rs. 30,000. According to the Plaintiff his father, Joseph had a l/3rd share in all the properties and as one of the five sons of Joseph to whom alone the inheritance should devolve, the Plaintiff was entitled to claim a l/15th share thereof.
This l/15th was accordingly valued at Rs. 8,000. The Defendants 9 to 13 were impleaded as alienates from the 1st Defendant of some of the A screed le items. It may be added that the Plaintiff filed separate suit O.S. 23 of 1947, on 9-9-1947 in the Cochin Sub Court for setting aside the release in respect of the properties in British Cochin and for partition thereof. The Plaintiff''s l/15th share for purpose of that suit, was estimated at Rs. 37000:
The suit was contested by the 1st Defendant. He denied that his brother Joseph was ever legally married to the 2nd Defendant and that the Plaintiff and the other children of the 2nd Defendant were at all legitimate. For, the Jewish law which governed his brother did not permit him to marry a non-Jew. Joseph had led a wayward life and his objection to the grant of probate of the will of the mother was irresponsible and filed without bona fides.
The compromise arrangement with the Defendants 2 to 8 was in the nature of a bona fide settlement of family disputes and was also had with the sanction of court. It was not open in the circumstances for the Plaintiff to question the action of Defendants 2 to 4 in accepting the arrangement. The compromise had also been acted upon and the Plaintiff must be held estopped from questioning it.
According to the 1st Defendant he had been rather generous in giving up the Always property and further In parting with a sum of Rs. 21.000 which was far in excess of the value of the deceased Joseph''s l/3rd share in the properties appertaining to their mother Rebecca. The 1st Defendant also denied that all the items 1 to 17 comprised in the A schedule belonged to the mother.
The B schedule was vague and even otherwise did not take in any of the mother''s properties. The 8th Defendant, brother of the Plaintiff, filed written statement claiming his right to l/15th share on basis adopted in the plaint. Defendants 9 to 13 supported the 1st Defendant and claimed marshalling in any event.
The main questions that arose for consideration, on the contentions of the parties as above were covered by issues 1, 6 and 9 which ran as follows:
Whether Plamena was the legally wedded wife of Joseph David. Are Plaintiff and Defendants 3 to 8 legitimate children of the said Joseph David. Are they entitled to claim as heirs any share in the properties of the said deceased either by law or custom.
Is the release deed 1189 of 1113 referred to in para 9 of the plaint invalid and not binding on the Plaintiff for all or any of the reasons mentioned in the plaint. Can Plaintiff (sic) any share in the properties of the deceased Joseph David Without getting the release deed set aside?
Has the Plaintiff any cause of action against the 1st Defendant?
On issue (1) the court below found that though there was no proof of the marriage of the 2nd Defendant with the deceased Joseph, still there was sufficient in the case to show that the parties constantly and continuously lived and cohabited together for 20 years and had seven children and were regarded as man and wife by relations and friends and such course of conduct afforded clear .and conclusive evidence of marriage.
It therefore held that the 2nd Defendant was the legal wife of the deceased Joseph and the Plaintiff and Defendants 3 to 8 were the legitimate children of the union. The court found further that the Plaintiff and Defendants 3 to 8 were entitled as the children of the deceased Joseph to claim their shares of his inheritance by virtue of either the Indian Succession Act which governed their devolution or under Ext. BW gift-deed dated 10-4-1109 and Ext. AZ Will dated 28-9-1112 corresponding to 10-5-1937 both executed by Joseph in favour of his children.
On issues Nos. 6 and 9 the court below held fnat Ext. VIH release-deed of 11W did and not binding on the Plaintiff and the other minors and that the Plaintiff was entitled to get 1/5 of his father''s 1/3 in the properties of the deceased Rebecca, the compromise arrangement between the 1st Defendant and Defendants 2 to 4, being for this purpose treated as not in the proper interests of the minors because the assets of the porosities had really never been valued.
The amount of Rs. 21,000/- was itself improperly distributed to the detriment of the minor sons'' legitimate shares. The court below held also that there was no question of any estoppel as against the Plaintiff in maintaining the suit. As regards the properties available for division, the court below found that besides the items 2 to 5 and 13 to 17 admitted by the 1st Defendant to belong to his mother Rebecca, there were items 1, 6, 8, 18 and 19 which also belonged to her.
There was no evidence however that 1st the Defendant acquired other properties out of the income of the properties of the father or mother nor ,: had the Plaintiff shown that the 1st Defendant was'',., in possession of any jewels, gold or silver as bet longing to his deceased mother. It ultimately held that the Plaintiff was entitled to l/15th share to the plaint a schedule items 1 to 6 and 8 to 19. The 8th Defendant''s claim to share on the same footing as the Plaintiff was disallowed because he did f not pay court fees in spite of the directions of the court.
In the result the court granted a preliminary decree in favour of the Plaintiff for l/15th share in the plaint A schedule items 1 to 6 and 8 to 19 with mesne profits from date of suit. The court below found also that the alienees Defendants 5 to 13 had not established any equitable consideration in their favour, but nevertheless it gave a direction that they will be disturbed as little as possible in making the allotments under the final decree. Hence this appeal by the 1st Defendant.
It will be useful before we deal with the contentions on either side, to know the antecedent circumstances so as to have an idea of the exact position of the parties at the time the com- , promise of the Probate matter was taken up and the settlement between the parties arrived at. The following facts may be taken to be either proved or admitted; David Isaac David the father of the three Jew brothers had originally a speculative business in the buying and selling of cotton in Bombay.
After he came down to Cochin he took up the business of sending planks from Cochin for making, empty opium cases for shipment from Bombay to China. He used also to bring diamonds from Bombay and sell them to the local Jews. He died leaving immovable properties both in Mattan cherry and Fort Cochin. Isaac the eldest of the brothers had married in wealthy family and after a trip to China had settled down in Bombay carrying on big business.
The 1st Defendant who was the next in order of age was for some time the Assistant Manager in the Standard and David Mills at Bombay an later was carrying on business along with his'' elder brother. Subsequently he came over to Cochin and was engaged in importing Rikshas, from Japan and conducting business in money lending and also working as a local agent of the Tata Oil Mills. Joseph the last of the brothers was alone lacking in push to engage himself if business.
He had settled down in Alwaye taking an Eznava lady, outside his fold, for wife and was a mere spender. This naturally must have created dissatisfaction in the family. Bo much so, the fattuar David Isaac when he gave off Rs. 15000 to each of his sons on 14-9-1908, desired that the money Intended for Joseph should be "put in trust for him until the end of my life". Vide Ext. XXXV letter of the father to the 1st Defendant.
Similarly when he executed his will Ext. LVI-A on 30-11-1915 he provided for the legacy of Rs. 5000 etc., granted to in favour of Joseph to be put in trust or on some other arrangement as in the executors'' opinion was more beneficial so that Joseph could only enjoy the income of what was bequeathed to him and after him if he left no legitimate children the trust money was to go to the testator''s other sons. The feelings of the father can be gauged by the reference in Ext. LVI-A to the possibility of absence of legal heirs to Joseph even though Defendants 3 and 4 had by then been born to him.
It is in evidence that Joseph was paid the sum of Rs, 15,000 free from the trust restrictions referred to in Ext. XXXV letter and that he ran through the entire amount in the course of two or three years. But when the turn came for other payment the brothers Isaac and Elias were more strict and determined. There was first, the sum of Rs. 25,000 forming Joseph''s share of the sale proceeds of certain property at Bombay which originally belonged to the father.
That amount was retained by Isaac from the year 1918 when it came into his hands till 19-1-1931 when alone he passed it over to Joseph and that for purpose of making a trust capital therewith under Ext. XXVIII trust deed. Interest at 6 per cent would appear to have been paid till the previous year for we find the trust amount composed of the principal of Rs. 25,000 with balance interest to talling Rs. 26,517-8 annas.
There was again the sum of Rs. 5000 which fell due to Joseph as a pecuniary legacy under his father''s will Ext. LVI-A. This amount must have been collected by Elias as co-executor under the Nvjll as early as on 28-5-1916 vide Ext. XXV receipt, but he did not disburse even a portion of it to Joseph, while he was alive. Elias knew of Joseph''s need for money from his constant festerings but would no further than pay the accruing interest.. He advanced further sums no doubt but only as a loan and without grace, as can be observed from his letter Ext. B dated 5-9-1926:
..... What are you going to do with your children. You do not listen to me but you only want my money.... But the thing I ask you chiefly is about your children, who in future will be a source of trouble and nuisance to everybody
And Elias took care to total up these loans and get Ext. LXXII bond from Joseph for Rs. 2500 on 19-11-1931 i.e., the very day Joseph got his quittance of Rs. 25,000 under Ext. XXVIII trust. It is not difficult in the circumstance to imagine that Clause (5) of Ext. XXVIII trust-deed executed by Joseph was made to the dictation of the brothers Isaac and Elias:
After the death of this settler the trustee shall purchase immovable properties .... in the joint names of Kali the mistress of the settler and his children through Kali then living
This view of the relationship between Joseph and the 2nd Defendant may correctly reflect the views of the brothers but it must certainly have left Joseph irritated.
It was about two years later, on 5-2-1934 I that the mother''s will, copy of which is attached to Ext. II probate certificate came into being. The mother was then past 80 and was under the protection of her second son Elias who was also in nagement of her properties and funds. Joseph could therefore very well imagine that Elias was responsible for the contents of the will particularly where it described Joseph''s family life and said "the share of Joseph to be put in trust and the interest only to- be given to him". Soon thereafter the brothers Joseph and Elias took to open fight. Joseph commenced by the execution and registration of three gift-deeds in favour of his two eldest sons Cyril and Julian, the Defendants 3 and 4 herein as representing all the children of his 1/3 right over all and every property standing in the name of his parents or Elias or his daughter Gladys even, situate respectively in Travancore-Cochin State and British Cochin. Ext. BW dated 10-4-1109 is the document of gift in relation to the Cochin State properties.
There is no doubt, there is a good deal of exaggeration in the statement of Joseph''s case as against Elias in this document Ext. BW. But the point for us to note at this stage is that the occasion is taken by Joseph for an assertion of the legitimacy of his kinship with Defendants 2 to, 8, apparently intended as a counterblast to the carping references thereto in the mother''s will, which again is indirectly attacked by characterising her as old and mentally deranged.
Elias''s retaliation took the form of a petition M. P. No. 1 of 1111 in the Parur District Court for adjudicating Joseph as a lunatic, under the Lunacy Act. The petition is not before us but there is an interlocutory order of the Lunacy Court filed as Ext. XXIX and dated 10-4-1111 with reference to the necessity of expert medical examination of the alleged lunatic. The mother died on 18-7-1936 while this lunacy proceeding was still pending.
It was then that the Probate application was made by Elias as O.P. No. 7 of 1936 in the Subordinate Judge''s Court in British Cochin and Joseph came forward with his caveat. We have not before us the petition of objection filed before the Probate Court by Joseph or the answer thereto filed by Elias. But it is possible to say that Joseph relied on the plea that the will was wanting in due execution because the mother was insane at all material times and similarly Elias was refuting the caveat by the assertion that Joseph was himself insane and possibly referring to his own pending petition in the Lunacy Court.
During the course of the Probate enquiry Joseph executed his will Ext. AZ on 10-5-1937 practically confirming the provisions of Ext. BW gift and died on 19-5-1937. On Joseph''s death his legal representatives Defendants 2 to 8 applied to impaled themselves and carry on the caveat proceedings.
In regard to their intervention the 1st Defendant had urged that they were no legal heirs of Joseph, the 2nd Defendant according to him, not being the legally wedded wife but being only the concubine of Joseph. Ext. BW gift in favour of the wife and children could not serve any useful purpose in this connection because it had been executed during the lifetime of Rebecca the testatrix and Ext. AZ will, which might have been relied upon as constituting them legal representatives by grant of specific legacy there under, was itself attacked on ground of Joseph''s alleged lunacy at the material time.
It would appear that the attesters to the mother''s will had been examined in the Probate proceedings and the 1st Defendant also had given evidence in support of his application for probate. It was at this stage the compromise proposal was mooted and the settlement arrived at.
We will now analyze the terms of the compromise arrangement. Ext. LXXVI is the compromise petition filed by the 2nd Defendant and all her children under Order 23 Rule 3 Code of Civil Procedure. It mentions that the matter had been compromised between them and the counter-Petitioners viz., the executors and trustees under the will. The Petitioners were by virtue of the compromise to receive a sum of Rs. 21,000 from the counter-Petitioners in lieu of all their claims through Joseph David and his mother Rebecca to be divided in manner stated.
That is to say, Petitioners 1, 2 and 3 viz., Defendants 2, 3 and 4 herein were each to take Rs. 2750. A sum of Rs. 2000 was stated to have been paid to them on account of costs incurred by them in contesting the Probate Petition in court and for other matters connected therewith as per copy of accounts separately given.
The balance sum totalling Rs. 10750 was deposited for the benefit of the minor children with the Imperial Bank of India, Cochin i.e., Rs. 2750 each in the individual names of James, Robert and Thomas, 6th Defendant Plaintiff and 8th Defendant respectively constituting the three male children left and Rs. 1250 each in the individual names of Ruby and Baby the 5th and 7th Defendants respectively who were the only two female children.
The respective amounts due to the minors were to be paid to them as and when each of them attained the age of majority, the interest accruing meanwhile to be paid once a year to the guardian and mother Plamena the 2nd Defendant herein on her receipt. It went on to recite the tree release deeds to be executed and registered in the Cochin State, British India and the State of Travancore. There was a reference also to a sale-deed Ext. LXXI executed by the 1st Defendant to Defendants 2 to 8 with respect to the Always property in their occupation, It will be recalled that a legacy of Rs. 5000 due to Joseph under his father''s will was still unpaid and left in Elias''s hands. On the other side Joseph''s bond Ext. LXXII for Rs, 2500 in favour of Elias was also remaining undercharged. Settling these accounts a sum of Rs. 2500 remained due from the 1st Defendant and it was for this sum that he conveyed his ownership rights in Alwaye property under Ext.LX Xl to Defendants 2 to 8. Separate affidavits in support of Ext. LXXVI petition were filed as Ext LXXVTI by Plamena 2nd Defendant, Ext. LXXVIII by Cyril the 3rd Defendant and also by Julian the 4lh Defendant.
Further affidavit Ext. LXXIX was filed by the 2nd Defendant praying for sanction of court to recognize her as guardian ad liter of the minor children and authorising her to enter into the compromise "in respect of the interest of the said minors in the estate of the deceased Joseph and of his mother deceased Rebecca". Txt. LXXXI certificate by Sri T. V. Ramakrishna Iyer examined as D. w. 2 in this case who had appeared as a Vakil on behalf of the Defendants 2 to 8 in the probate proceedings, was also filed, to say that the terms of the compromise were in the best interests of the minor children and sanction of court may therefore toe accorded for the compromise.
The court passed order granting permission to the'' Defendants 2 to 8 to withdraw their objections to the grant of probate and accordingly Ext. II probate certificate was issued in favour of the 1st Defendant in respect of the will executed by the deceased Rebecca.
Subsequently sanction of court was obtained on 16-8-1938 for investing the Rs. 10750 due to the minors in the Imperial Bank of India with their mother as settlor, in trust for them and pursuing it Ext. XX trust deed dated 12-10-1938 was brought into existence. Ext. XX provided for the respective amounts due to the minors to be paid to them as-and when each of them attained majority and so Ruby and James the 5th and 6th Defendants respectively got their Rs. 1250 and 2750 on their attainment of majority before this suit. It is Robert the third of the minors under Ext. XX settlement that figures as the Plaintiff in this suit.
The first question for consideration is whether the estate was not properly valued when the amount of compensation due to the Defendants 3 to 8 was fixed at Rs. 21000. According to the 1st Defendant he offered to give them only Rs. 20000 but Advocate Mr. A.B. Salem asked him to pay-thousand rupees more and he agreed. He put down the figure of Rs. 200TO because the properties were worth Rs. 60000, the valuation having been made in consultation with, others who had got experience in that line.
The 1st Defendant gave the information when he was .being examined in chief by the Plaintiff himself as his first witness and there is no reason why we should not take it at its face value. The learned Judge seems to have caught hold of an other statement made by the 1st Defendant on the same day for enabling him to draw the inference that there had been no valuation at all of the mother''s properties.
But why that part of the deposition should be preferred is not clear, for, the 1st Defendant definitely spoke and more than once to the valuation of the properties at Rs. 60000 and his putting the figure as Rs, 20000 for purpose of the offer to compromise.
The practice was adopted in this case of keeping away from the witness box the second Defendant mother and the Defendants 3 and 4 the elder sons, who must necessarily have taken prominent part in the compromise transaction and of examining the 1st Defendant as the Plaintiff''s first witness. If so, it should not be open for the Plaintiff to disclaim the weight of the 1st Defendant''s statement that the properties had been'' valued and that at particular figure.
There was also no attempt on the side of the Plaintiff to assess the exact value of the proper, ties at the relevant time by the issue of a commission Shri T.V. Ramakrishna Iyer who appeared as counsel for the 2nd Defendant and her children in the Probate proceedings, examined as D. W. 2, confirmed the 1st Defendant''s statement as to the valuation. The court below was willing to discard the evidence of this witness in the light of what it thought was the compelling evidence of the 1st Defendant, the other way.
In our opinion however the court below fell into error in doing so. We may take it therefore that the properties over which Joseph had a share were valued more or less at Rs. 60000 and about one-third of this value which might rightly appertain to his legal representatives was offered and accepted by them under the compromise arrangement.
The next question is whether there was, anything wrong in the distribution of the amount of Rs. 21000, as adopted under the compromise. Though in the plaint, the Plaintiff sought to say3 that the mother and sisters were paid more that their due claims, the Plaintiff examined as P. W.''7 was willing to admit that the sisters were entitled to marriage expenses and Streedhanam and the mother had a share equal to that of a son. The" question is, was there anything wrong in fixing the shares of the sons at Rs. 2750 and the mother also on that basis while the share of the female children was Rs. 1250.
We have been unable to find any possible objection. Again, was it objectionable to pay the mother and the eldest sons Rs. 2000 towards expenses claimed by them to have been already spent The learned Judge was willing to say that that was paid as hush money to the mother and elder brothers.
But he forgot to notice that neither the mother nor the elder sons who could have been examined in proof of this allegation, had fought shy of the box. The mother died only in March 1951 and Cyril the 2nd Defendant was present practically throughout the examination before the Commissioner of the 1st Defendant as P. W. 1 and was besides instructing Plaintiff''s Counsel. Indeed the Plaintiff himself had to admit that personally ne did not know anything about the valuation of the plaint items but his brother alone could say something definite about it.
We hold accordingly that there was no fraud or over-reaching on the part of the elders in the matter of the distribution under the compromise arrangement of the amount of Rs. 21000 as between the Defendants 2 to 8.
There is one other aspect in which this matter may be viewed. That is to say Ext, BW gilt by Joseph in favour of the Defendants 3 and 4 representing all his children, of his one-third interest in his mother''s estate provided in terms in paragrah 18 that "even though the minor sons are directed to be given, a share in the properties, you are entitled to carry on all necessary litigations, obtain partition and possession of the properties or release all the rights in the properties for money consideration according to your discretion ...... unke neither myself nor my minor children shall have any right to question any of such acts, deeds and things done by you.
You are entitled to ...... divide the properties along with the balance of the income, if any left, among my sons now casting and those who may be born hereafter to me through your mother and give such amounts by way of ''Streedhaaam'' to may daughters according to your discretion" And though Ext. BW could not be operative because it was executed during the lifetime of the mother, still the above provision ''was incorporated by reference in Ext. AZ will, executed by Joseph in favour again of his children.
.....the terms of Ext. BW are not to be altered in any way by the terms contained herein and my owns are to act according to the terms and conditions contained in the said deed in this will.
It would appear therefore that the persons entitled to function if at all in the matter of the recovery of the property and administer the same on behalf of the family were only the Defendants 3 and 4 viz. the eldest sons Cyril and Julian. It was in their discretion to compromise or adjust the claims & receive money instead of property from the 1st Defendant and provide for the claims of the mother and the sisters and then finally distribute the net proceeds as among the male children.
Now Defendants 3 and 4 were without doubt active willing parties in the matter of the compromise in the probate proceeding and the releases which were executed in consonance with the terms of the compromise in favour of the 1st Defendant. If so it could not be open to the rest of the parties to question either the adequacy of the amount of Rs. 21000 as due to the estate of Joseph by way of compromise with the 1st Defendant or the ratio in, which that amount was distributed among the Defendants 2 to 8 inter se. The question of undervaluation of the properties of the mother Rebecca would then fade into insignificance. Indeed, in this view no question will be left except possibly as to whether the Defendants 3 and 4 alone should not have functioned as the guardians of the property of their minor brothers and sisters as per the provisions of Ext. AZ testament of the father, whether for the-compromise petition Ext. LXXVI or for the release Ext. VIII etc., in place of their mother the 2nd Defendant who, in fact, functioned as such. But this, in our opinion, would be rather a matter of form than of substance.
Reference may, in this connection, bemade to the paragraph extracted in the judgment of Stirling, J,, in re Venn & Furze''s Contract, (1894) 2 Ch. 101 (A), on the high authority of Lord Cairns and Lord Granworth:
Where a person who fills, the position of an, executor is found selling or mortgaging part of his testator''s estate, he is to be presumed to be acting '' in the discharge of the duties imposed on him as executor, unless there is something in the trans action which shows the contrary; and further, that the contrary is not made out merely from '' the circumstance that the conveyance of mortgage does not purport to be executed by him in ; that capacity.
This passage no doubt deals with the transactions of an executor under a will. But it seems to us that it can well be applied to the dealings of a testamentary guardian vis a vis his ward''s estates, as herein. See the recent case of Ponnammal v. Srinivasarangan, (SX AIR 1950 SO 162 (B), where this question of form of substance arose, though not prominently, in more or less similar situation. There, the minor sons who. were the reversioners, under Hindu Law were allowed to be represented by their mother instead of, by their father as under law it should have been done, in connection with a transaction of family arrangement.
But the father happened to be an active participant in the whole matter and so the court did not treat the non-representation of the minors by the father for purpose of the transaction as of any defect. See also Bijraj Nopani v. Fura Suiidari basi ILR 42 Cal 56 : AIR 1914 PC 93 ) (C) and Gangabai Vs. Sonabai, .
Learned Counsel for the Respondent referred to the case in Narayanan Nambooripad v. Kuttimoosa, 21 Ker LR 413 (E) for the principle that a minor''s interest cannot be said to be dealt with at all under a document unless the legal guardian of the minor executes the document and the interest is also specifically dealt with: therein. That was a case, where a Mohammadan; mother acting as the guardian of her minor children, in conjunction with her husband - the legal" guardian of the minors, executed a document surrendering to the jenmi the kanam right held by the minors over certain properties.
The question was whether by that document, the interest of the minors was surrendered. Under the Mohammadan Law the mother was not competent to act as their guardian but it was contended for the jenmi that since the father, their legal guardian, had also joined in the execution of the document he must be taken to have executed it as their guardian also. The court held that in view, of the recital in the document that the mother was the person who acted as the guardian of the minors, the father could not be deemed to-have represented them and that therefore the document was void as against them.
The court went on to say that a person joining in a deed for a specific purpose could not be considered as having joined for a totally different purpose. Learned Judges, it would appear were-influenced by the fact that the 1st Defendant father never acted as the guardian of his children nor was he in possession of the property as such guardian. In fact he had joined in the execution of the surrender deed because he was the absolute owner of the kanom properties with regard to the major share and did not cease to be a Kanomdar as regards the jenmi in spite of his assignment to the Defendants 3 and 4, his children, because no adornment by them had taken place to the jenmi.
Learned Judges referred to ILR 42 Cal 56 : AIR 1914 PC 92) (C) and ILR 40 Bom 69 : Gangabai Vs. Sonabai, and found the principle not applicable in the circumstances. In our judgment, the 21 Cochin LR 413 case (E) is distinguishable and cannot affect the principle in question. It follows frescoer that the active junction of Defendants 3 and 4 in the petition of compromise Ext LXXVI and in the deeds of release including Ext. VIII was sufficient to validate those transactions even as .regards the Plaintiff and other minors albeit their formal representation of the minors was wanting.
In dealing with the propriety of the Plaintiff''s representation by the mother and Defendant under Ext. VIII release, the court below thought that inasmuch as the children of Joseph were Christians resident in Alwaye in the State of Tra-vancore, the law applicable to the Christian community in that jurisdiction had to be applied. So, following the ruling in Punnoose v. Koruthu, 1951 Ker LT 223 : AIR 1951 Ker 118) (PB) (P) it held that the 2nd Defendant was not competent to execute Ext, VIII release so as to bind Plaintiff in the absence of an order of court sanctioning the same.
The decision cited had however really no application for it dealt with the question of the powers of a paternal uncle who functioned as guardian of''his minor nephew before the Travancore Christian Guardianship Act of 1116 had been passed. There is however the recent decision in Soosa Anthony Decosta v. E. N . Sivasubramonia Nadar. 1956 Ker LT 177 : AIR 1956 Ker 107) (G) which holds, following Ouseph Maria v. Luca Mathai, 4 Ker LJ 266 (FB) (H) and (Kaveripakkam) Bangarammal Vs. Lydia Kent and Others, that under the customary law governing the Christian Community in Travancore the mother is the legal guardian of the minors in the absence of the father. See also Geeri Prabhu v. Thomman 21 Ker LR 451 (J).
It would follow therefore that even on the test adopted by it;, the court below was wrong in adjudging Ext. VIII to be invalid. And curiously enough the court below did not advert at all to the appointment of the mother as guardian ad liter of her minor children for the Probate case nor to the sanction applied for and obtained from the Probate Court to execute Ext. VIII and other releases and to compromise the entire matter.
Learned Counsel for the Appellant says that the omission of the court below to consider at all Ext. VIII in relation to the compromise in the Probate Court as between the parties and that with the sanction of the court was a very serious omission and had prejudiced a fair disposal of the case. And he stressed in this connection a vital aspect involved in the case was the bona fide settlement of family disputes in regard to which courts ordinarily take a very favourable attitude.
It may be recalled that the questions in Issue in O. P. No. 7 of 1936 were on the one side, the genuineness of the will of the mother , Rebecca sought to be probated and Joseph''s own mental capacity to sustain his caveat on the other. The mental weakness of the mother rested on the slender foundation of her being left in the Madras mental hospital for about 3 months in or about 1900 and her quiet spells on later occasions.
As regards Joseph, he had himself provided the data, though not conclusive, when in the course of Lunacy proceedings he confessed "For the just two or three years I feel that my mind is deranged" and also talked flippantly of his wife "I then began to live with a girl for amusement. I have seven children by her Kali is the woman I am keeping". After Joseph''s death the question emerged as to the survival of his rights and that depended on the legality of his marriage with the second Defendant, certainly not a simple matter. Now, could not the compromise of all these disputes be taken to be a family arrangement in the accepted sense i.e., a transaction immune from attack in court except to very limited extent?
Story in his Equity Jurisprudence has said:
the whole doctrine of validity of compromise of doubtful rights rests on this foundation... If such compromises are otherwise unobjectionable, they will be binding, and the right will not prevail against the agreement of parties; for the right must always be on one side or the others and there would be an end of compromises, if they might be overthrown upon any subsequent ascertainment of rights contrary thereto.
If therefore a compromise of a doubtful night is fairly made between parties, its validity cannot depend upon any future adjudication of that right. And where compromises of this sort are fairly entered into, whether the uncertainty rests upon a doubt of fact, or a doubt in point of law, if both parties- are in the same ignorance, the compromise is equally binding, and cannot be affected by any subsequent investigation and result.
The learned author continues.
There are cases of family compromises, where, upon principles of policy, for the honour or peace of families, the doctrine sustaining compromises has been carried further. And it has been truly remarked, that in such family arrangements the Court of Chancery has administered an equity, which is not applied to agreements generally. Such compromises, fairly and reasonably made, to save the honour of a family, as in case of suspected illegitimacy, to prevent family disputes and family forfeitures, are upheld with a strong hand; and are binding, when in cases between mere strangers the like agreements would not be enforced.
To similar effect is the treatment of the subject in Halsbury''s Laws of England, second edition page 542, Reference may be made in this connection to AIR 1937 105 (Privy Council) where a family settlement was held valid in the absence of convincing evidence as to unfairness of agreement, even though it appeared there was an unequal division between the two branches of brothers of a joint family and also to Martin Cashin v. Peter J Cashin AIR 1938 PC 103 (L) which was a case from Newfound, land, where the fact that parties had greatly misunderstood their situation and mistaken their, rights was not allowed to disturb a family arrangement because it was fair and just and had been entered into fairly without concealment or low position on either side.
See also Dangal Ram Vs. Jaimangal Saran and Another, Jhamatmal, v. Chetanram AIR 1940 Sind 81 (N), Gopaldas v. Dhanrajmal AIR 1945 Sind 11 (O), Sidh Gopal Vs. Behari Lal, and P.V.S. Vencatachellum Vs. P.V.S. Kabalamurthy Pillai, .
Learned Counsel for the Respondent ask how could -there be a ''family settlement'' in this case when the status of the Plaintiff and. his. I theirs and sisters as the legitimate children of Joseph was itself being questioned by the 1st Defendant. But it is precisely this questioning on the one side and the resistance on the other that produce the situation of disputed rights, where the doctrine of bona fide compromise among the members of family arises.
Learned Counsel further argued that the compromise being one in probate proceeding was totally unlawful and should on that sole ground be altogether ignored. But it is only where evidence in proof of the will is sought to be excluded that an agreement or compromise as regards the genuineness and due execution of a will can be said to be "unlawful" within the meaning of Order 23, Rule 3 Code of Civil Procedure. No probate could then be granted merely because the caveat or consents to the grant for, such agreement would be against public policy.
And if we remember that evidence had been already let in the Probate proceedings in O. p. No. 7 of 1936 as to the genuineness of the mother''s will there can be no objection to the withdrawal of the caveat entered by Joseph and sought to be carried on by his legal representatives. We are not also prepared to say that the settlement and payment off of the claims of the legal representatives of Joseph in his mother''s estate, was totally outside the field of controversy between the Parties.
In our judgment the Respondent has not succeeded in establishing any circumstance of invalidity '' so far as the instant settlement is concerned and if so there should be an end to his case.
We should not omit, before closing, to, refer to an argument addressed by learned Counsel for Appellant, viz., the failure of the Plaintiff either to allege or make out any circumstance sufficient to have the compromise in the probate proceedings set aside as against him and he referred to Rameshwar Pershad Singh v. Bam Bahadur Sing, ILR 34 Cal 70 (PC) (R).
In that case the Appellant sued to set aside a compromise and decree in accordance therewith in a former suit, which had been made on his behalf by the adult members of a joint family, of which he was an infant member, and for other reliefs. The High Court held that under the circumstances the compromise was valid and binding. Lord Macnaghten in delivering the judgment of the Board opened the judgment by saying:
The first step the Appellant has to take is to set aside the compromise of a former litigation instituted for the very same purpose as the present suit. The compromise was brought to the attention of the Court, approved by the Court, and stated solemnly in an order made by the Court to be for the benefit of the infant, who is now suing.
The infant had no separate interest; the adult members of the family, who were presumably competent to judge of their own interests, hart taken part in this compromise and assented to and the court pronounced that it was for the benefit of the infant, who was made a party for the purpose of binding his interest, such as it was.
It should not be forgotten that the guardian here was the minors'' own mother and the minors'' brothers who were seizures were also parties to the compromise. It is difficult to find any conceivable motive for the mother and the brothers to give up valuable right of the minor Plaintiff. Besides the Court had duly appointed the mother as the guardian ad litem. A lawyer had been engaged to defend the matter on behalf of the parties and he had certified that the compromise was in the best interests of the minors. There could it seems to us to be no justification to hold that the compromise order was not valid and binding upon the Plaintiff. It is worthwhile in this connection for remember the words of Sir Robert Collier in Bar lioo Lekraj v. Baboo Mahtab Chand, 14 Moo Ind App 393 (PC) (S).
It is undoubtedly the duty of guardians scrupulously to regard the interest of minors in dealing with their estates, and the Court will, when necessary, enforce the performance of this-duty. But the interests of infants would seriously suffer if a notion were to prevail, that guardians were bound for their own security to contest all claims against an infant''s estate, whether well or ill-founded; and such a notion might prevail if" the compromise of a claim of debt confirmed by a decree of Court were to be set aside after sixteen years without distinct proof of fraud.
It is not complained that the order of the Court sanctioning the compromise in O. P. No. 7 of 1936 was defective because it did not appear to have considered the facts for itself. Even so it was only a minor matter, for the guardian of the minor applying under Order 32, Rule 7, Code of Civil Procedure, had set out all the facts'' and grounds on which the permission of the Court was sought for entering into the compromise as for the benefit of the minor. The order of the Court merely allowing the petition could not necessarily mean that judicial consideration had not been given to it.
It follows therefore that the settlement of the claims of the 2nd Defendant and her children by the 1st Defendant was fair and reasonable. Further that the allocation of Rs. 2750 as due to-the Plaintiff towards his share was also fair and reasonable. Ext. VIII and other releases executed by Defendants 2 to 4, the 2nd Defendant acting also as guardian of her minor children were also-valid and unimpeachable at the hands of the Plaintiff.
In the light of the conclusions we have-arrived at as above, it has become unnecessary for us to decide the large question raised in the case and debated elaborately at the bar, as to whether a Jew in the position of Joseph could have validly married the 2nd Defendant, a non-Jew and whether they should not be held to be husband and wife in law, for the reasons which appealed to the learned Judge below. It has also become unnecessary for us to decide whether the utilization of the Plaintiff''s share of Rs. 21,000 paid by the-1st Defendant under the settlement, for purpose of court-fees in the Plaintiff''s parallel suit O. S No. 23 of 1947 in the Subordinate Court in British Cochin, constitutes an estoppel against him.
In the result the appeal succeeds and the-suit is dismissed with costs throughout.