Joti Lal Shah and Others vs Beni Madho Prasad Singh and Others

Wort, J.—This is the defendants appeal. It arises out of an action by the plaintiff-respondents who being already in possession of 8 annas interest in a property known as the Amnour estate, claimed the remaining 8 annas from the defendants. Plaintiff 1 is the son of Tejpratap Singh. The contesting defendants 2 to 5 are the transferees in respect of certain mauzas and mortgagees in respect of others from Tinkauri, defendant 1. The relief claimed in the plaint is that

it be adjudged by the Court that properties in dispute by virtue of the family arrangement mentioned ... belong to the plaintiff, and defendant has no right or title or subsisting right or title to any portion of the estate,

and there was also a claim for possession. One Krishna Bahadur Singh was the last male holder and proprietor of the estate apart from the parties to this action. He died on 17th October 1898, leaving him surviving his widow Bahuria Devapati Kuer only, there being nc issue cf the marriage. After Krishna Bahadur Singh''s death Devapati Kuer went into possession of the estate. It is not disputed that on her death Tejpratap Singh, the father of the, plaintiff, and Tinkauri Singh, defendant 1, became entitled to the estate to the extent of 8 annas each. The claim put forward by the plaintiff is (without going into details at the moment) that the defendant agreed, in consideration of a payment to him by Tejpratap Singh of the sum of Rs. 2,400 per annum, to make no claim to the estate on the death of the widow. It will be necessary to consider later, in some detail, the actual terms of the agreement in so far as they have been proved in this case. The agreement is alleged to have been made in the following circumstances. In the first place from the genealogical table attached to the plaint (which is admitted by the defendants) it will be seen that the common ancestor of Tejpratap and Tinkauri was one Dalip Singh. By the second wife of Dalip Singh there were four sons. Tinkauri is the great-grandson of the second of these sons Debidut Singh, and Tejpratap is the great-grandson of the fourth of these sons, Kashidut Singh.

Krishna Bahadur Singh having died in October 1898 as already stated, in January 1899 his widow Bahuria Devapati Kuer propounded a will under which she was to have an absolute estate in the property in dispute. Ultimately this will was found to be a forgery. Another will was propounded by one Motiraj Kuer as guardian of her son Harmadho Prasad Singh. Harmadho it may be stated descended from the youngest of the four sons of Dalip Singh to whom I have referred, and was the nephew of Tejpratap Singh. The petition of Motiraj Kuer was dated 6th January 1899. To the petition of Bahuria Devapati Kuer, five persons filed caveats: Tejpratap Singh, Tinkauri Singh, Mt. Motiraj Kuer, Raghubar Singh and Dundbahadur Singh. The case of the plaintiff is that his father Tejpratap was comparatively well off whereas Tinkauri was a schoolmaster in receipt of a very small salary, and being poor was unable or unwilling to jeopardize such property as he possessed by fighting the litigation in connexion with the will, and therefore made the agreement alleged. It is said by the plaintiff as an explanation of the appearance of Tinkauri''s name in many of the proceedings in the litigation following upon the death of Krishna Bahadur, that the agreement between the parties was that Tinkauri should lend his name, although taking no active part in the proceedings. Exactly what were the terms of the agreement relied upon by the plaintiff as the basis of this action it is difficult to state. It is set out in para. 3 and again referred to in para. 9 of the plaint. The substance is that in the circumstances to which I have referred Tinkauri was not? to spend any money on the litigation but the expenses were to be borne entirely by Tejpratap; that Tejpratap would protect Tinkauri in Court in proceedings which the lady propounding the will might take against him; that Tinkauri would be reimbursed if his properties were in any way affected on account of the litigation; but that the fruits of the litigation with the widow would go entirely to Tejpratap Singh. It was agreed that if the litigation turned out successfully the monetary allowance to be made to Tinkauri would be Rs. 2,400 per annum. The reference to the agreement in para. 9 is that Tinkauri would have nothing to do with the expenses of the litigation and that there was a corresponding agreement that he should have no interest in the estate other than the allowance referred to. This agreement is described by the plaintiff, as we have seen in the relief portion of his plaint, as a family arrangement.

There were at least five persons who put forward by their opposition to the will some sort of claim or interest in the estate. It is perhaps material to repeat what I have said already that the admitted position was that Tejpratap and Tinkauri were the reversioners to the extent of 8 annas each and that other parties, excepting so far as they may have been members of a joint family of which Tejpratap was the head, had no interest in the estate. The learned Judge in the Court below has come to the conclusion that the agreement was made and that the parties having now acted upon it, Tinkauri is estopped from claiming a share in the estate. Tejpratap is dead and the oral evidence which has been accepted by the Judge, is, in so far as the plaintiff is concerned, evidence of persons who attempt to prove that they were present when this agreement was entered into. The evidence on the part of the defendant is of course a denial that any such agreement was arrived at. The Judge has pointed out in the course of his judgment that the oral evidence is open to criticism, but there are certain circumstances to which he refers which in his opinion corroborate the story of the plaintiff. So far as the credibility of the witnesses is concerned, the Judge has definitely come to the conclusion that Tinkauri is an unreliable witness--unrealiable that is to say in material particulars. More especially does he criticise Tinkauri in his statement as to the expenditure which he alleges he made in the course of the litigation and in payment of a part of a decree which the Mussamat obtained against the parties in execution of a decree for costs. I agree with the learned Judge in the Court below that the oral evidence is open to the most serious criticism and the circumstances upon which the respective parties rely to corroborate their own evidence suffers in many instances from the infirmity of being equivocal. Documents are relied upon by both parties, in many cases for the purpose of contradicting the statements of witnesses and in a very large number of instances, in the majority I might say, the apparent contradictions have not been expressly put to the witness whom it is sought to contradict. In my opinion the adoption of this procedure is very often deliberate, it being wrongly supposed that the party has a greater scope in his argument in a Court of appeal.

In so far as the witnesses have had no opportunity to give an explanation of apparent contradictions, the documents relied upon in my opinion are of no avail to the party relying upon them. The most serious comment in the first place is that this alleged agreement, dealing as it did with a property of considerable value, was not put into writing. The estate is alleged to be of the value of several lakhs of rupees. Before dealing with the oral evidence and the arguments on the part of the respective parties certain facts regarding this litigation had better be stated. On 26th April 1899 the probate proceedings of Devapati Kuer were compromised. On the same day the application for probate of the other will by Motiraj Kuer was also settled. All the parties who had entered caveats were parties to the compromise of Devapati Kuer''s petition. The substance of the compromise was that she gave up her claim under the will. On 7th of September 1899 Devapati Kuer filed a review petition making certain allegations as regards the compromise. This was opposed by Tejpratap and Tinkauri, and on 16th June 1900 the application was dismissed. Then on 16th November of the following year Devapati Kuer brought a suit to set aside the compromise, which action succeeded and on 28th February 1903 the decree in the compromise was set aside. In 1905 the appeal to the High Court was dismissed and then Devapati Kuer put in execution a decree for costs amounting to approximately Rupees 6,000. Ten years later, that is in 1915 Devapati Kuer revived the probate proceedings, but the Court pronounced against the will, and by a judgment dated 24th May 1916 came to the conclusion that the will propounded was a forgery. An appeal to the High Court also failed. On 20th September 1922 Devapati Kuer died.

The parties rely in support of their respective cases upon the circumstances which existed and the events which took place after the death of Krishna Bahadur Singh. The plaintiffs more particularly rely in support of their case, that such an agreement was in fact made that all the expenditure incurred during the litigation referred to above was met by Tejpratap. It is also contended that after the death of the widow Tejpratap went into exclusive possession as the Judge in the Court below has held. This matter will be referred to in greater detail later. (His Lordship then discussed the oral evidence and proceeded.) It is not disputed that the agreement alleged in the plaint is unenforceable. If it be taken to be an agreement by which Tinkauri sold his 8 annas interest in the estate in consideration of a payment of Rs. 2,400 per annum, or an undertaking by him in consideration of that payment not to make a claim to the estate, it was an agreement dealing with a mere spes successionis and therefore unenforceable: see Section 6, T.P. Act, also the decision in Sham Sunder Lal v. Achhankunwar (1899) 21 All 71 and Amrit Narayan Singh v. Gaya Singh AIR 1917 PC 95. Again as it was an agreement purporting to deal with Immovable property, it is not enforceable not being in writing registered in conformity with the provisions of the Transfer of Property Act and the Registration Act. As a more agreement and not as a transfer, no action for specific performance with regard to such an agreement is maintainable as it is hopelessly barred by limitation. If the matter ended there, it is not seriously contended by the respondents that the present action could be maintained or that the defendant was estopped as the learned Judge has held him to be.

It was in those circumstances that Mr. Sinha was forced into contending that either the agreement of 1899 implemented in 1922 or a new agreement of 1922 upon which the parties went into possession, was in the nature of a family arrangement and that having been acted upon by the defendant he was estopped as the learned Judge has held him to be. Mere estoppel would not assist the plaintiffs; the defendant would be estopped from asserting that no agreement had been made. But even if such an agreement is proved, it is unenforceable as I have stated. It cannot be said, to be a family arrangement as many of the conditions of a family arrangement are absent. At most it was an arrangement made between two out of a large number of contesting members of a family, not for the purpose of settling a family dispute but rather to facilitate the fighting out of a family dispute by some members who are now admittedly entitled to the property, against those who were at that time making claims to shares in that property. Had Tejpratap gone into possession of the whole estate in pursuance of an arrangement arrived at by all the contesting members including the widow the position might have been as the Judge has held. Incidentally the position which Mr. Sinha now takes up that it was a new agreement entered into in 1922, is quite untenable, as the evidence of what took place at the sradh ceremony is against the contention that any new arrangement was made at that time. The question of possession in pursuance of the agreement alleged to have been affirmed in 1922, becomes of the utmost importance as it is upon that footing that the respondents support their case. They contend that whether there was an agreement of 1899 or a new agreement of 1922, the parties having acted upon it the question cannot now be re-opened

The widow died as we know in September 1922. There was another person who was contesting his right to this property and that was Dund Bahadur Singh, one of the descendants of Babu Dalip Singh by his first wife. He made a claim to have his name registered with one Harihar Prasad Singh to three-fifths share of Tauzi No. 3311, a part of the estate which Devapati Kuer had left. He had applied in the Land Registration Department, and in the early months of 1923 his case was pending in that Court. It was finally disposed of on 4th June 1923 against him. It cannot be disputed thai Tejpratap and Tinkauri joined forces to fight Dund Bahadur; but immediately the latter''s case was disposed of, the controversy between the parties to this litigation commenced. Tinkauri made his application to the Land Registration Department with regard to eleven mahals and on the 31st of March of the following year it was ordered that Tinkauri and Tejpratap should have their names recorded jointly. But the plaintiff''s case is that he was in exclusive possession, and in support of that case he produced a large number of receipts showing payment of rent to him by the thicadars who were in possession of the greater part of the estate. That he was collecting rents from the thicadars is supported to some extent by the contention of Tinkauri, that the thicadars were in collusion with Tejpratap. Tinkauri supported his case by the production of a number of rent receipts showing payment of rent to him with regard to a very small part of the estate by one cultivating tenant.

But that this does not conclude the matter is, I think, shown by the statements which Tejpratap made whilst contesting Dund Bahadur''s application to have his name registered with regard to eleven mahals. He there stated as we have seen that he and Tinkauri had been in possession of the entire estate since the death of the widow. The statement made by Tejpratap is not the only matter which supports the plaintiffs'' contention that Tejpratap was not in exclusive possession after the death of the widow. In an action brought by Tinkauri against Hira Prasad and Tejpratap (judgment where of was given on the 22nd of December 1926) Tinkauri recovered from Tejpratap the sum of Rs. 4,579-8-6 as rent for the years 1330, 1331 and 1332 Fs., i.e., 1923, 1924 and 1925. Now the agricultural year for 1330 would start in September 1922, the month of the death of the widow. This claim represented Tinkauri''s eight, annas share in the rent collected by Tejpratap from the thicadars. The action was brought against the thicadars and against Tejpratap, Tinkauri seeking to recover the amount claimed from the thicadars or in the alternative from Tejpratap. As Tejpratap had been collecting the rent from the thicadars judgment was obtained against him. There are several comments to be made with regard to this action. A complete defence to the plaintiffs'' claim would have been the alleged agreement, but no such suggestion was made by way of defence. The respondents endeavoured to explain the judgment and the absence of this defence on the footing that it was barred by Section 60, Ben. Ten. Act. Whatever might have been the effect of that section on the defence of the thicadars, it had no application to the case of Tejpratap. Although it is a common practice not to go into questions of what are called title in rent cases, the action could not be described as an action for rent as against Tejpratap; and, had the issue been raised, the Court would have been bound to decide the point. As the Judge trying that suit was a Subordinate Judge who would have the jurisdiction in this case, it is difficult to see what answer there is to the appellants contention that this case is concluded as res judicata. In any event it seems to me to be conclusive on one point and that is that Tejpratap was not allowed to go into undisputed possession of the whole sixteen, annas of the estate.

The position seems to be this. The arrangement of 1899 was at the most an agreement between two members of the family which is unenforceable. Whether the evidence as regards the happenings at the sradh ceremony is evidence of a new agreement arrived at then or evidence of an affirmation of the old is immaterial, as it is clear in my judgment that the parties did not act upon the agreement, that is to say, at the first possible moment, after the dispute with Dund Bahadur had been settled, the dispute between Tejpratap and Tinkauri arose. Mr. Sinha has relied upon the case in Kanhai Lal v. Brijlal AIR 1918 PC 70, but that case bears no resemblance to the one before us. It was a case in which members of a family disputed the right of a Hindu widow to succeed to a certain property. The plaintiff in the action before their Lordships of the Judicial Committee of the Privy Council had been a party to the compromise by which the estate had been divided between the contesting members of the family. Although the "plaintiff did not actually go into possession of any portion of the estate, he was recognized as the adopted son of a deceased uncle and at a later stage went into possession of the property of that uncle which had been allotted to his widow under the arrangement. Some 14 years after the arrangement an action was brought claiming the property.

In the argument before their Lordships of the Judicial Committee of the Privy Council, Sumsuddin v. Abdul (1907) 31 Bom 165 was relied upon but Sir John Edge, delivering the opinion of the Judicial Committee of the Privy Council stated that decision had no bearing on the case before the Board as there was no question in the case before the Board of a conveyance of any future right or expectancy or of an agreement to convey any future right or expectancy or any agreement to relinquish any future right or expectancy. The question was whether the plaintiff did, by his acts in the compromise, debar himself from claiming as a reversioner. The Court decided that he was now estopped and his action failed. That case is distinguishable from the present for the reasons which I have already given. Here the plaintiffs are seeking to enforce an agreement either an agreement to convey or an agreement to relinquish the future right, which agreement was not acted upon when the succession opened on the death of the widow. The cases in Harnath Kuer v. Indar Bahadur Singh AIR 1922 PC 403 and Ananda Mohan Roy v. Gour Mohan Mullick AIR 1923 PC 189 were referred to by the appellants. Those cases are not strictly in point excepting so far as the latter re-stated the proposition, laid down in the former case that an expectancy is not an interest capable of transfer. Mr. Sinha has also relied upon, a number of English cases including Williams v. Williams (1868) 2 Ch A 294. That case however bears no resemblance to the present. The learned Lord Chancellor delivering the judgment there stated that not only the two brothers had been parties to the division of the property there in dispute but the widow also, and an agreement which had been acted upon for a long number of years could not be disturbed. In my judgment even if it be held that an agreement was arrived at between Tejpratap and Tinkauri, either in 1899 or in 1922, it is an agreement which cannot be enforced, and, as the parties did not go into possession on the footing of the arrangement, the defendant is not estopped in this action.

There was another matter relied upon by the appellants. The plaintiff-respondent in this appeal compromised with defendant 1. By this compromise Tinkauri''s right to 8 annas in the property in dispute is admitted. It is contended therefore that as Tinkauri''s right is recognized the compromise in effect admits the title of defendants 2 to 5 as assignees of Tinkauri. The answer in my opinion is that there is no admission in the compromise that the agreement alleged in the action was not made. The title of defendants 2 to 5 depends upon the failure of the plaintiff to establish the agreement, whereas the title of defendant 1 is now based on the agreement of compromise. However for the reasons already given the appeal succeeds and the plaintiffs claim is dismissed as against these appellants with costs throughout.

Dhavle, J.

I agree. The terms of the family arrangement under which the plaintiffs claim the moiety of the Amnaur estate that in default of such an arrangement it undoubtedly fell to Tinkauri''s share on the death of the Bahuria (Devapati Koer) have not been given with any precision either in the plaint or in the evidence. Para. 4 of the plaint speaks of Tej Pratap causing a house to be built for Tinkauri on account of proximity of mutual relationship caused by the family settlement" set out in the previous paragraph. It has been found by the lower Court that Tinkauri''s story of how his house stands on a piece of land which he obtained by exchange from Tej Pratap is a myth and that the plaintiffs case in this connexion is nearer the truth. This finding rests on good evidence and cannot be rejected. But Mr. Dutt for the appellants has argued that providing Tinkauri with a house on Tej Pratap''s land was no part of the family settlement. The circumstance is small in itself, but the argument has been rendered possible by the failure of the plaintiffs to set out the family settlement fully in para. 3 of the plaint, so much so that we have to turn to para. 9 to find out what it was that Tinkauri agreed to do in return for Tej Pratap carrying on the litigation with the Bahuria on behalf of both of them, namely

to have no interest in the estate left by Babu Krishna Bahadur Singh except the allowance of Rs. 2,400 a year.

In his deposition Harmadho Prasad says that according to the agreement the entire estate would belong to Babu Tej Pratap and he (Babu Tinkauri) would get an allowance of Rs. 200 per month.

The difference between Tinkauri not claiming the estate and the whole estate belonging to Tej Pratap is perhaps unintended, and Tej Pratap''s interpretation of that term of the agreement of family arrangement as given by Harmadho in connection with what in para. 14 of the plaint is treated as the reaffirmation and ratification of the agreement on the occasion of the sradh of the Bahuria is that Tinkauri relinquished the estate in Tej Pratap''s favour at the time of the original agreement. The effect of such an agreement--involving a relinquishment in praesenti by a reversioner before his interest in the estate had become concrete by reason of the death of the Bahuria--will be dealt with later. The plaint does not state the month in which the agreement was made. In his deposition in the land registration proceedings of Tinkauri, Tej Pratap placed it in Aghan or Pus (corresponding roughly to December or January) of 1899, while Harmadho in his deposition places it in "Falgoon 1306 (while the first probate case was going on)." Comment has been made on this discrepancy, but it has to be remembered that Tej Pratap was only roughly giving the month about 25 years after the event and was not further cross-examined on the point. Mr. Dutt has not been able to show us that there was such effective cross-examination of Harmadho on this point as to support the contention advanced before us on the ground that even by Falgoon 1306 Tinkauri had too little to do in the proceedings to find the expenditure beyond his means so as to make it likely that he would speak to Tej Pratap and enter into an agreement with him as alleged by the plaintiffs. The learned Subordinate Judge has accepted the explanation given on behalf of the plaintiffs for the agreement not being in writing. This explanation is that Tej Pratap''s case as regards the genealogy would have been considerably weakened if Tinkauri had ostensibly given up the fight with the Bahuria who had set up a will to keep out the agnates, and with Dund Bahadur who claimed to be no further removed from Krishna Bahadur than Tinkauri and Tej Pratap, or if Tinkauri had executed any agreement retiring in favour of Tej Pratap. (His Lordship then examined the evidence and proceeded.) The learned Subordinate Judge has held that the agreement is legally enforceable, because

defendant 1 having agreed not to claim any share in the estate if a certain course of conduct was adopted by Tej Pratap which Tej Pratap did adopt, he is now estopped from claiming a share in the estate.

This, however, is not the estoppel of Section 115, Evidence Act, which requires a representation of an existing fact as distinguished from a statement of something which the party does or does not intend to do. Tinkauri''s agreeing not to claim a share in the estate or relinquishing his share in favour of Tej Pratap can only be regarded as a term in a contract between the parties. He had, however, at that time nothing beyond a spes successionis in the estate which the Bahuria was to hold for her life; he had nothing to assign or to relinquish or even to transmit to his heirs--no "right which could form the subject of bargain": Amrit Narayan Singh v. Gaya Singh AIR 1917 PC 95 If it meant a transfer or relinquishment in praesenti the agreement was void. Even as a bargain de futuro a transfer or relinquishment to be effected after the estate fell in it was void: Ananda Mohan Boy v. Gour Mohan Mullick AIR 1923 PC 189 . Mr. Sinha has cited Moti Shah Vs. Ghandharp Singh in support of the contention that not with standing the inalienability of the spes successionis there may be an estoppel against a Hindu reversioner when the succession opens on the death of the widow who holds for life. But as was explained in Fateh Singh v. Thakur Rukmini Rawanji Maharaj AIR 1923 All 387 the ground on which a reversioner may be precluded from assailing an alienation made by a widow is not estoppel but that something, might have been done by him even before the succession opens which amounts to "an actual election to hold the deed good." We are not concerned in the present case with any alienation by a Hindu widow and an election by the reversioner to hold it good. Mr. Sinha has urged that the agreement may be supported as a family arrangement to save the estate from going out of the family. But Dunda Singh who like Tej Pratap and Tinkauri set up a claim to the estate in the probate case, was also an agnate, claiming at that time to be no further removed from the common ancestor than Tej Pratap and Tinkauri, though it has since been found that he was one degree further removed and he was not a party to the so-called family arrangement. The Bahuria who had possession of the estate was also left out. Mr. Sinha has urged that the compromise in the first probate case to which the Bahuria, Harmadho, Tej Pratap and Tinkauri were parties, was a part of the? same transaction as the agreement between Tej Pratap and Tinkauri now in question. But Dunda is still left out, and the agreement between Tej Pratap and Tinkauri is clearly a different transaction altogether from the compromise. The-essence of the agreement was to fight the Bahuria and Dunda in order to keep the estate for Tej Pratap and Tinkauri, or rather for Tej Pratap alone subject to his paying Rs. 200 per month to Tinkauri and Tej Pratap and Tinkauri were not only not in possession of the estate, but did not-even have any interest in it to bargain with. Mr. Sinha has referred to 40 All 487 and AIR 1927 227 (Privy Council) as instances where reversioners on their succession were held to be precluded from claiming by reason of family arrangements before the succession opened, but in those cases there were actual dispositions of the family property of which the reversioners had had the benefit for a number of years.

In the present case the agreement between Tinkauri and Tej Pratap did not deal with the Amnaur estate at all and was no more than an attempt to bargain with Tinkauri''s spes successionis. It is not altogether clear from the judgment of the learned Subordinate Judge whether it was the agreement of 1899 by itself or that agreement as re-affirmed in 1922 that he considered enforceable on the ground of estoppel. At the time of the so-called reaffirmation the Amnaur estate was vested in Tej Pratap and Tinkauri. They could now have entered into an agreement under which Tej Pratap was to keep the entire estate and Tinkauri was to receive from him Rs. 200 per month for life which would mean a transfer of Tinkauri''s moiety of the estate to Tej Pratap for an annuity of Rs. 200 a month, But it was not the case of the plaintiffs that such a new agreement was made in 1922. They claimed Tinkauri''s moiety on the basis of the agreement of 1899 as re-affirmed in 1922. The agreement of 1899 was however, as I have already shown, void and would remain so not with standing Tinkauri saying in effect that he would adhere to it.

It was for this reason that Mr. Sinha urged that the transaction of 1922 should be treated and upheld as a new family arrangement. But that transaction was very different from a family settlement of the usual type in which there is no transfer of title involved but each party takes a share by virtue of an antecedent title which is to that extent and by way of settlement admitted by the other parties. That there was no dispute going on between Tej Pratap and Tinkauri would not preclude a family arrangement in 1922 between them: Williams v. Williams (1868) 2 Ch A 294, and if they did arrive at a family arrangement, the Court will not go into such questions as, for example, inadequacy of consideration. But if Tinkauri had agreed in 1922, after a moiety of the estate had vested in him to relinquish it in favour of Tej Pratap for an annuity of Rs. 200 a month, the mere fact that they were descendants equally removed from a common ancestor and thus owners of the Amnour estate would not enable them effectively to bring about that relinquishment without a registered deed. A mere oral agreement would not by itself suffice to pass or extinguish Tinkauri''s title (though the position might be different if the agreement were acted upon for a sufficiently long time), and if Tinkauri resiled from the agreement in 1923 as is the plaintiffs'' case, they would have to enforce it by suing within the period of limitation to establish their title. But the present suit was instituted in 1928 and on the footing that the family arrangement entitled the plaintiffs to Tinkauri''s moiety. Not only would the transaction of 1922, such as it was, thus fail to operate in law as an actual transfer or relinquishment of Tinkauri''s title, but it is difficult to feel satisfied that it was acted upon.

The learned Subordinate Judge no doubt finds that from the death of the Bahuria in September 1922 to the dismissal by the Collector (on appeal) of Dund Bahadur''s application for registration in the Land Registration Department in June 1923 Tej Pratap remained in sole possession of the estate. But throughout that period Tej Pratap''s own case in the Courts was that he and Tinkauri were in joint possession though the management was solely in his hands. The learned Subordinate Judge discounts this circumstance on the ground that it was still essential for Tej Pratap "to keep Tinkauri in toe" lest his genealogical table be discredited. He has however not taken notice of the fact that in a number of suits brought in 1925 against tenants for arrears of rent from 1330 onwards Tinkauri obtained decrees for his share in the presence of Tej Pratap as a second party defendant. Tej Partap appears to have allowed these decrees to be passed in his absence, but in the suit by Hira Prasad (judgment, Ex. A B), where a decree was passed against the tenant and also a decree against Tej Pratap for the portion of the rent collected by him in excess of his share, the first two plaintiffs in the present suit appealed to the District Judge and also to the High Court without contesting Tinkauri''s title to a moiety. The suit was tried by a Subordinate Judge whose decision on the question of title as between Tinkauri and Tej Pratap would, I take it, be res judicata in later proceedings, though the point was apparently not raised below. One of the issues framed in that suit was whether the plaintiff (Tinkauri) was entitled, to recover any rent in respect of his share, and the finding was that he and Tej Pratap, defendant 2, were entitled to a moiety each. Mr. Sinha has endeavoured to get rid of the force of this decision by urging that u/s 60, Ben. Ten. Act, Tej Pratap, no less than the tenant-defendant, had no defence to the suit. But Section 60, Ben. Ten. Act, had no application so far as -Tej Pratap was concerned, as Jwala Prasad, J. observed in his judgment (my learned brother concurring):

The suit is not a suit for rent against defendant 2 but an ordinary suit against a co-sharer for disgorging the money received by him which was due to another co-sharer.

Tej Pratap and after him the plaintiffs had a complete defence to the suit in the title they now allege, but failed to advance it, and Tinkauri got his decree against the tenant and Tej Pratap, both on a title which was not denied and possession which alone was denied. As this and other rent decrees of the period are based on Tinkauri''s possession from the beginning of the agricultural year 1330, it is impossible now to hold that Tej Pratap came into actual possession of Tinkauri''s moiety in the mauzas to which these rent suits relate from the death of the Bahuria which occurred about a fortnight after the beginning of that year. As regards the other part of the family arrangement under consideration, namely, the payment of an allowance of Rs. 200 a month, the learned Subordinate Judge has recorded no finding, even though the plaintiffs obtained a revisional order from the High Court enabling them to amend the plaint toy an addition to the end of para. 14 that payments were made from time to time in accordance with the family arrangements and recalled Harmadho (P.W. 28) and Jagannath Tewari (P.W. 12) to give evidence on the point. Unlike the oral evidence previously recorded this evidence was taken down by the Subordinate Judge whose judgment is under appeal. He has nevertheless not taken any notice of it, and it is possible that he was not impressed by it. The evidence is manifestly none of the best. Harmadho speaks of two of the payments as being made in his presence, but these are payments of Rs. 402 and Rs. 75, amounts which bear no recognizable relation to maintenance at the agreed rate. Jagannath speaks of one payment of Rs. 200 between those two payments and there are two other entries found in the abstract, Ex. 50, proved by Harmadho as in the handwriting of Paspat Lal, P.W. 37 (who was not recalled on the ground of illness), which could obviously have been supported by much better evidence than was actually adduced; the later of these two entries is dated Asin 1331 (October 1923) and though Mr. Dutt may be right in saying that the payment must actually have been made earlier (before the rupture of June 1923), Tinkauri''s receipt, which is referred to in the entry, has not been produced. None of these payments was put to Tinkauri, and if any money was paid to him, this is by no means inconsistent with his title to the moiety, the management being admittedly in the hands of Tej Pratap. My conclusion is that even if the transaction or talk of 1922 which is put forward in the plaint as a re-affirming and ratifying of the agreement of 1899 be regarded as a new family arrangement, the plaintiffs have failed to establish that it was acted upon at all. There was an open rupture with Tinkauri as soon as the contest with Dund Bahadur was over, but even during the six or eight months when Dund Bahadur''s application for registration was being contested by Tej Pratap, Tej Pratap''s exclusive possession is contra-indicated if not definitely disproved, nor is the receipt of Rs. 200 a month brought home to Tinkauri. It follows that Tinkauri''s title to the moiety has not actually passed to the plaintiffs, and that having allowed the period of limitation for a suit for specific performance (even as of a new arrangement of 1922) to elapse, they cannot now recover either on the basis of the agreement of 1899 as re-affirmed in 1922, or on the basis of a new family arrangement made in 1922. For this reason the suit ought to have been dismissed as against these appellants and the appeal succeeds.

Mr. Dutt also urged that the lower Court ought not to have proceeded even as against the appellants to pronounce upon the agreement set up by the plaintiffs after the compromise by which they recognized the title of Tinkauri to a moiety in several mauzas of the estate. But the plaintiffs had sued to recover possession from the appellants on the ground that Tinkauri could convey nothing to them by reason of his agreement with Tej Pratap. The compromise between the plaintiffs and Tinkauri does not negative this agreement. Nor were the appellants parties to that compromise. It was thus still in issue as between the plaintiffs and the appellants whether Tinkauri had any title left after the alleged agreement with Tej Partap to convey to the appellants. Appellants rights as against Tinkauri after the compromise in this suit were not the subject matter of the suit. There was also another reason why the compromise did not mean the end of the suit as against the appellants. Their mortgages, we understand, are not confined to the villages in which Tinkauri gets a share under the compromise but extend also to villages wholly allotted to the plaintiffs. It was thus necessary to go into the question of the agreement of 1899 in spite of the plaintiffs'' compromise with Tinkauri.