Sakerlal Chhotalal vs Mehta Chunilal Manilal and Another

Shah, C.J.—This is an appeal from the decree of the Civil Judge, Senior Division, Bhavnagar, in a suit brought by Respondent 1 Chunilal Manilal, alleged to be deaf and dumb by birth and to be of unsound mind and represented by his paternal aunt Bai Chaku, for a declaration that the will made by the deceased Taralakshmi in favour of the Appellant Sakerlal Chhotalal was null and void as being without authority and not being made in a sound disposing state of mind and that it did not affect the rights of Respondent 1 and his heirs to the property comprised therein. The following genealogical table explains the relationship between the parties.

Kalabhai | ______________________________________________________________ | | | Chunilal Trikamlal=Taralakshmi Chaku (Plaintiff) (Died in (Died in (Daughter), | 1935) 1946) Next friend _______________ of the | | Plaintiff Chunilal. Arvind Arun (Deft. No. 2)

The name of original Defendant Arun, minor represented by his mother Bai Rambha was struck off, pending the suit. The contesting Defendant 1 Sakerlal Chhotalal is the brother of Taralakshmi, widow of Trikamlal.

On Trikamlal''s death in Samvat year 1991 (1935 A.D.) one Mulji Vallabhji, purporting to be the next friend of the minor Arvind Chunilal, applied for a succession certificate, by miscellaneous application No. 82 of Samvat 1991, to the Court of the Sar Nyayadhish of the then Bhavnagar State on the ground that Trikamlal had died in jointness with them and alleging that the certificate was sought on behalf of the minor because Chunilal was deaf and dumb by birth. This application was opposed by Taralakshmi who contended that Trikamlal had died in separation and that she was the sole heir to her husband''s estate; and ultimately the Court ordered the issue of a succession certificate in favour of Taralakshmi. An Appeal No. 9 of Samvat 1994 filed against the said order was dismissed by the Hazur Court of the Bhavnagar State. According to the Plaintiff Chunilal, it was held in the said appeal that Trikamlal Manilal had died in jointness but he (Chunilal) was excluded from inheritance on account of his congenital deafness and dumbness and because the Hindu Inheritance (Removal of Disabilities) Act, 28, had not been applied in the Bhavnagar State. Thereafter Chunilal and Arvind, represented by his next friend Mulji Vallabhji, filed suit No. 17 of Samvat 1994 in the Court of the Sar Nyayadhish of Bhavnagar claiming the estate of Trikamlal by survivorship on the footing that Trikamlal had died as a member of an undivided Hindu family and that Taralakshmi was only entitled to maintenance. Taralakshmi, on her part, contended that Trikamlal had separated from the family and had died in separation, that the estate in dispute was acquired by himself and that she was exclusively entitled to it. The suit was ultimately compromised and a consent decree dated 19-3-1941 was passed by the Court by which the property left by Trikamlal was divided between the Plaintiffs on the one hand and Taralakshmi on the other in certain defined shares. The estate was then in the possession of the Court Receiver, who had taken it over in the course of the earlier litigation. Taralakshmi claimed an absolute title to the part of the property allotted to her and in exercise thereof she bequeathed it to the Appellant by a registered will dated 12-7-1944. The Appellant having applied for a probate of the will the Respondents opposed the grant of the probate and pending the said probate proceedings Respondent 1 Chunilal brought the suit out of which this appeal arises

The plaint alleged inter alia, that the Plaintiff Chunilal was deaf and dumb and was not of a sound mind at the time of the proceedings relating to the succession certificate and Suit No. 17 of Samvat 1994, that Taralakshmi too was of an unsound mind at the time and that as neither the next friend nor a guardian-ad-litem of Chunilal or Taralakshmi had been appointed in those proceedings, the orders passed therein were null and void. It was alleged that the compromise in Suit No. 17 of Samvat, 1994 was contrary to the established principles of Hindu Law, that it was not a bona fide family settlement but was a device to divide Trikamlal''s estate between the said Plaintiffs and Taralakshmi, and that Taralakshmi did not take an absolute interest in the property given to her by the consent decree in that suit. It was contended that the compromise and the consent decree are invalid and are not binding on the parties, that Chunilal''s disability having now been removed by law his rights as a reversioner came to be revived, even if the compromise was held to be valid. Finally it was alleged that Taralakshmi had no right to bequeath by a will the properly received by her under the decree, that she was of an unsound mind, that she did not make the will with the full understanding of what she was doing and that it was obtained by Defendant 1 Sakerlal who is hey brother, by undue influence and pressure and was altogether invalid.

Defendant 1 denied that the Plaintiff was deaf and dumb by birth or was of an unsound mind at the time or that Taralakahmi was of an unsound mind. He raised the following contentions. He did not admit that Trikamlal and Chunilal were joint or that Trikamlal died in jointness. The compromise in suit No. 19 of Samvat 1994 and the consent decree passed by the Court were perfectly valid and binding on the Plaintiff and Taralakshmi got an absolute title to the property received by her under the compromise and was fully competent to dispose of the same in any manner she liked, including by a will. The compromise was not a device to divide Trikamlal''s estate but was a genuine family settlement voluntarily agreed to by both parties and the decree passed thereon was valid and binding on them. It has been acted upon by both parties and the Plaintiff and Defendant 2 were now estopped from disputing the settlement contained therein. Taralakshmi had made the will in a sound and disposing state of mind and the Plaintiff was not entitled to any relief.

The learned trial Judge rejected the plea that Chunilal was deaf and dumb by birth, or was mentally infirm and unable to take care of his interests in the former proceedings, or that Taralakshmi was of an unsound mind and was not competent to give her consent in suit No. 17 of Samvat 1994. He also rejected the contention that the compromise was not binding on the parties, but he held that Taralakshmi took only a widow''s estate in the property given to her by the consent decree, that she had made the will voluntarily and while in a disposing state of mind but that as she had not the capacity to bequeath by a will, Defendant l derived no interest in the property under the will. The learned Judge, therefore, granted the declaration prayed for by the Plaintiff and decreed the suit. Defendant 1 has preferred this appeal.

Mr. Bhatt, who appears for the Respondents, has accepted the lower Court''s findings of facts and has not addressed any argument on any of these. The material question falling for consideration is as to the nature of the estate which Taralakshmi took in the property given to her by the consent decree because if she took, only a limited estate, then obviously the will is incompetent and the Appellant gets nothing under it. In order to appreciate this vital fact, it is necessary to keep in view the background of the compromise. Trikamlal died on 15-1-1935 leaving an estate consisting principally of Government Securities in the shape of the Bhavnager State Bonds, Postal Cash Certificates, Treasury Bonds, Government Loan, Shares of Joint Stock Companies, cash deposits, outstandings, and a house at Bhavnagar valued at Rs. 6951/- the aggregate value of the estate being about Rs. 54,000/ -. A succession certificate was applied for on behalf of minor Arvind but on Taralakshmi''s objection the certificate was issued in her favour and this order was upheld in appeal. Whereas it was Chunilal''s and his son Arvind''s case that they and Trikamlal formed a joint Hindu family and Trikamlal died in jointness with them and they, therefore, took by survivorship, it was Taralakshmi''s case that her husband was separated since long and that the estate left by him was his exclusive property and, therefore, she inherited to her husband as his heir to the exclusion of the Plaintiff and his son. Her claim to the succession certificate was upheld in the miscellaneous proceedings and Chunilal and his son were, therefore, required to bring a regular suit. According to the plaint of, the present suit, it was held in Miscellaneous Appeal No. 9 of Samvat 1994 that at the time of Manual''s death, Trikamlal and Chunilal were joint, but as Chunilal was deaf and dumb congenially he was excluded from inheritance under the Hindu law. Now that was the position according to the Plaintiff, at the time suit No. 17 of Samvat 1994 was brought by Chunilal and his son. The plaint of that suit is not on the record, but the compromise, Exhibit 39 (of that suit) states that whereas the Plaintiffs alleged that Trikamlal died in jointness and they took by survivorship and the Defendant Taralakshmi had only a right of maintenance, Taralakshmi''s case was that Trikamlal was separate, that his property was his self acquisition and exclusive property and that she alone inherited the same as his widow.

The compromise proceeds to recite that the parties had been satisfied having regard to the available evidence that it was very difficult to decide these questions definitely and, therefore, in order to avoid family disputes and to save the estate from the costs of litigation and in, order to permanently maintain the peace of the family and with the object of preserving the minor''s interests as a whole, the parties had arrived at a settlement. The settlement was that two-fifth of the estate left by Trikamlal and which was then in the receiver''s possession should be given to the Plaintiffs and the remaining three-fifth should be given to Taralakshmi and that the property thus divided and fallen to the share of the respective parties shall be of their sole ownership, that is, they shall have the right to deal with it as absolute owners thereof, the words used being ''Swatantra Malik''. The house was to be sold through the receiver and the proceeds were to be divided by the parties in the above stated shares. The ornaments which the Plaintiffs may have in their possession were to be of their ownership, and those which may be with the Defendant were accepted as her stridhana and of her absolute ownership. For the expenses of the obsequies of Trikamlal which Bai Chaku had incurred, it was agreed, after an inspection of accounts, that Rs. 3217-3-6 were spent and that this sum should be paid to Chaku by the parties in an equal share. It was also agreed that the parties should apply for a succession certificate and obtain a joint certificate and the costs thereof were to be borne proportionately. The receiver''s remuneration was to come out of the estate. Out of a sum of Rs. 2641 odd and interest thereon which stood to Taralakshmi''s credit and which sum the receiver had in his possession at the time, Rs. 250/- were to be paid to the Plaintiffs and the balance to Taralakshmi.

There was thus a genuine dispute between the parties, each side setting up a claim for himself and denying the other party''s claim. If the Plaintiffs had succeeded in that suit, Taralakshmi would have been entitled merely to maintenance and, if on the other hand, Taralakshmi had succeeded in establishing her case, she would have inherited her husband''s estate, no doubt taking a widow''s estate therein, and the Plaintiffs would have been placed in the position of reversioners. Therefore there was a real contest and the parties stood to lose considerably in the event of an adverse decision. It was in these circumstances that they came to an understanding and agreed to receive specified shares in the estate in dispute The settlement was arrived at, as the compromise itself recites in order to preserve the peace of the family and in order to avoid further strain on the estate in the matter of costs. The present Plaintiff and Defendant 2 represented by his next friend, the said Mulji Vallabhji, were parties to the compromise and judging from the terms thereof it appears clear that it was a family settlement arrived at bona fide in the interests of both the parties. The Plaintiffs, by which expression is meant both Chunilal and minor Arvind, claimed a present right to the estate and so did Taralakshmi and each party claimed it to the exclusion of the other. The Plaintiff''s right was not in the nature of a spes successions and considerations which apply to a claim of that nature do not, therefore, arise in this case. The consent decree has been acted upon and the sum payable to Bai Chaku was duly paid. They also applied jointly for a succession certificate as provided and did actually obtain a joint certificate in October 1941. The compromise was not questioned until the Appellant Sakerlal applied for a probate of Taralaxmi''s will and it was then for the first time that the plea that the compromise was in the nature of device to divide Trikamlal''s estate was set up, and was followed up by the present suit. Therefore having regard to the circumstances in which the settlement was arrived at, there can be no question that. it was a bona fide family settlement made in order to put an end to further litigation and in order to serve the interests of both parties, and by no stretch of reasoning can this arrangement be treated as a device to divide the property of Trikamlal. It is not alleged that this was done with the object of prejudicing the rights of ultimate reversioners. In fact the raversioners were themselves parties to the compromise and the consent decree and it must be held, therefore, that Taralakshmi got an absolute title to the property allotted to her by the entry.

In-Kanhai Lal v. Brij Lal AIR 1918 P.C. 70 (A), on facts somewhat similar, it was held by their Lordships of the Privy Council that the Plaintiff of that case, was a party to the compromise, was bound by the compromise and could not claim as a reversioner. There a joint Hindu family consisted of three brOrs. , Bahadur Lal, Badri Prasad and Ganga Ram and they had a sister Ram Piyari. Badri Prasad and Ganga Ram died childless but left widows. Bahadurlal died without a son leaving a widow Ram Devi and a daughter Musammat Kirpa and on his death Ram Devi became entitled for life to a Hindu widow''s right to the whole of the family property. Kanhai Lal the son of Ram Piyari (sister) had then no right of any kind to any share in the family property, but he set up a claim to the whole property alleging that he had been adopted by Mt. Parbati the widow of Badri Prasad. If that claim had been established by proof of a valid adoption Kanhai Lal would have been entitled to, the whole family property and Ram Piyari would have been entitled merely to maintenance. A compromise was in these circumstances entered into between the widows of the three brOrs. and Mt. Kirpa the daughter of Bahadur Lal and Kanhai Lal himself whereby the property was divided into four parts and each of the widows and Mt. Kirpa were given one part and Kanhai Lal was to get the share allotted to Mt. Parbati. Subsequently Kanhai Lal claimed the property as a reversionary heir to Bahadur Lal. It was held that Kanhai Lal was a party to the compromise, that ho was one of those whose claims to the family property, or to shares in it, induced Mt. Ram Devi against her own interests and those of her daughter and greatly to her own detriment, to alter her position by agreeing to the compromise, that under that compromise he obtained a substantial benefit, which he had all along enjoyed, and that he was, therefore, bound by it and cannot claim as a reversioner.

In- AIR 1936 103 (Privy Council) , the facts were that after the partition of a joint Hindu family, two brOrs. continued to be joint and on the death of one brother, the property went by survivorship to the other brother. As the widow of the, deceased brother claimed certain property as the heir of her husband the matter was referred to arbitration and as a result of the arbitration the widow was given certain portion of the property with the consent of the surviving brother. The language used in the award was the same as regards the property given to the brother and that given to the widow, there being no words inserted to narrow the interests of the widow. It was held that the purport and the intention of the award must be deemed to confer upon the widow an absolute interest in the property allotted to her on the footing that the other brother took by survivorship. The mere fact that the claim of the widow before the arbitrators was originally a claim by a Hindu woman to take her husband''s estate, by inheritance, did not make the estate obtained by her under the award, a limited estate. It is true that in that case it was found on the facts that on the death of Ji Sukh his property passed by survivorship and not by inheritance, and that in the present case there is no definite finding one way or the other as to the nature of the devolution of the property left by Trikamlal, but that does not really touch the point at issue, and considering that the Plaintiffs were making a claim that they were entitled by survivorship, it will be right to take the view that they were competent to grant an absolute estate to Taralakshmi in the property allotted to her by the compromise.

The facts in- Mookka Pillai alias Sudalaimuthu Pillai Vs. Valavanda Pillai and Others, were very similar to those of the present case. On the death of one Sudalaimuthu Pillai there was a dispute between his widow Irulayi on the one hand and his brother Gopala Pillai and his sons on the other as regards the succession to the estate of the deceased. The widow claimed that it was the self-acquired property of her deceased husband and she was entitled to an absolute title to the estate under the oral directions of her husband. Gopala Pillai, on the other hand, claimed the property as joint family property which he and his sons got by survivorship. It was in this state of affairs that the parties met together and agreed that the dispute should be referred to arbitration and that whatever properties were allotted to each of the disputants should be allotted absolutely to them. The mediators divided the properties between them oh this basis. The widow, by a will, set apart the property got by her for performance of charities. In a suit brought by the trustees for the recovery of the properties against the sons of Gopala Pillai, it was held that the mediation and the award were not a device adopted by the widow and the reversioners to divide the estate between themselves to the prejudice of the ultimate reversioners. It was a case where each party was asserting some title to the property in negation of the title set up by the other. In the circumstances the award should be regarded as a bona fide compromise of disputes that had arisen between the parties as binding on both sides. Therefore, the widow got an absolute title to the properties in dispute under the award. In that case also a contention was made, as has been done here by Respondent 1, that as Irulayi had put forward before the arbitrators a claim only as the widow of Sudalaimuthu, she could not get under the award an absolute title and that the reversioners could not confer on her any such title, even if they wanted. It was also urged that there was nothing like estoppel in the case of a transfer of a spes successionis. These contentions were repelled by Mr. Justice Chandrasekhara Aiyar who observed as follows.

According to the Plaintiffs in this suit, the claim set up by Gopala Pillai and his branch that the properties were joint family properties and passed to them by survivorship was a false one; but there is nothing which prevented the arbitrators from proceeding on the basis that the claim was a true one and that Gopala Pillai and his sons were persons fully entitled to the properties who of their own accord and free will could give a half share in them absolutely to the widow. All that is required in the decisions cited for the Appellant is that the persons who enter into a compromise with the widow must be persons who could convey a title to her. Gopala Pillai claimed that he got the properties by survivorship and the arbitrators possibly recognised this claim and gave the widow a half share as Gopala Piliai and his sons wanted them to do. It is one thing for the ultimate reversioners to come forward and impeach a transaction as not binding on them, as it was a mere cloak or contrivance to cheat them of their reversionary rights, brought about by collusion and fraud between the widow on the one hand and the presumptive reversioners on the other. But it is Anr. thing for the very reversioners who are the parties to the transaction and who happen to be actual reversioners on the death of the widow to urge that it does not bind them. Of course, if it is a mere spes successionis there can be no estoppel, but if there was some antecedent title which was set up, it might prove good or bad ultimately and it was on the basis of this antecedent title that the compromise was effected, then the transaction ceases to be a transfer of mere spes successionis and the doctrine of estoppel comes into play.

This decision is a good answer to the contention urged on behalf of the Respondents that Taralakshmi had all along contended that the estate was Trikamlal''s separate property and she inherited it as his widow, that she had denied the Respondents'' claim that Trikamlal had died in jointness and the Respondents took by survivorship, and that therefore the Respondents were not in a position to convey any title to her on the footing that they took by survivorship, and, on the strength thereof, made her an absolute owner of the property given to her. Here instead of the arbitrators imposing their own decision the parties themselves arrived at a settlement and the Respondents could well be taken as having accepted the position that they were fully entitled to the estate and were of their own accord and free will giving a share therein absolutely to Taralakshmi. The learned Judge below concedes that it was not proved at any stage what the nature of the properties held by Trikamlal was, but he proceeds to hold that as it had not been proved whether the properties were of a joint family or otherwise, they could be held to have come to Taralakshmi from her husband by way of inheritance, and therefore by the settlement Taralakshmi could only get a widow''s estate in the property allotted to her and no higher rights. It is difficult to follow the reasoning of the learned Judge. After having held that the nature of the estate left by Trikamlal had not been ascertained it was wrong to hold that Taralakshmi should be taken to have inherited it as an heir to her husband simply because that was the claim which she had set forth against the Respondents. The Respondents on their part had set up a claim by survivorship and it is well that they should also be confined to their case. It was because of the genuine dispute between the parties, which, according to the terms of the compromise itself, it was not possible to determine that they came to terms and agreed that both the parties should take the property absolutely and as ''Malik''. Each party had set up an antecedent title, to the exclusion of the other, and if in this state of affairs they reached a settlement then such a settlement could not be treated as a device to divide the property of the deceased. As in the Madras case, there is no question, here of a mere spes successionis which the Respondents were claiming. On the contrary they were claiming a title in themselves and not as mere reversioners. There is also no suggestion, and there cannot be any on the facts of the case, that this was a device to prejudice the ultimate reversioners. Clearly, therefore, the doctrine of estoppel comes into play and the Respondents are estopped from disputing Taralakshmi''s absolute title to the property given to her under the compromise.

Another case in support of this view is- AIR 1934 265 (Oudh) , where it was held that the ordinary presumption under Hindu Law that a female donee under a grant takes only a life''s estate is not applicable where she is given properties under a compromise or a family settlement. The nature of her estate must be determined from the terms of. the deed, the circumstances under which the compromise is arrived at and the subsequent conduct of the parties.

In- Vatsalabai Vinayak Nimkar Vs. Vasudev Vishnu Musale, , the facts were as follows: On the death of a Hindu, his self-acquired property was divided between his widow and his divided brother and nephew, and the latter stipulated that they had no right, title and interest in the property allotted to the widow and that she could alienate it to anybody in any manner as full owner. On the widow''s death the property was claimed by her grand-daughters on the one hand and her husband''s brother and nephew on the other. It was held that the estate which was given to the widow was an absolute estate and formed part of her stridhan and the widow''s grand-daughters were, therefore, entitled to succeed. It was observed:.

There was, therefore, uncertainty as to the rights of the rival claimants, and Exhibit 38 composed the disputes between the parties and must be considered as a family arrangement by a settlement based on the acknowledgment of a pre-existing title in the parties to the document.

Mr. Bhatt for the Respondents has relied on- S. Appaswami Pillai (deaceased) and Others Vs. Thayammal alias Thaiyamuthu Achi and Another, , but there the compromise was with a person who was at best a remote reversioner with a bare expectancy and the transaction was not bona fide. The learned Judge observed:

A compromise may, in some cases, also, amount to a family agreement, and from that point of view, justified if it is prudent and reasonable, and bona fide effected to secure family peace. But an arrangement made in violation of the law, and in conscious disregard of the right of the reversioner will not be upheld even though it is made to assume the cloak of a family arrangement. It is not the form but the substance that the Court will consider in judging of its validity.

The latter part of this observation does not apply here in view of the facts of the present case. The decision in- Bkottiprolu Seetharamamma Vs. Ramireddi Patta Reddi and Another, , cited by Mr. Bhatt is also distinguishable on the facts. Even so, it was there recognised that if the parties who entered into the arrangement were entitled to an absolute estate or entitled to confer on the daughter an absolute estate, the arrangement can prevail as against the reversionary heirs to the estate. These and other cases cited by Mr. Bhatt for the Respondents bring out the principle that persons who enter into a compromise with the widow must be persons who could convey a title to her, and obviously the Respondents in the present case were persons who could convey a title to Taralakshmi.

That it was agreed and in fact intended to convey an absolute title to Taralakshmi is abundantly clear from the very recitals of the compromise, the most material recital being that the property allotted to each party was to be its absolute property that is to say each party could deal with its share of the estate in any manner it liked as an absolute ''Malik''. The language used in the compromise is the same as regards the property given to the Respondents and that given to Taralakshmi, and there is nothing to narrow the interests of Taralakshmi in the estate allotted to her. As stated in AIR 1936 103 (Privy Council) , the use of the same language in regard to both the parties showed that the purport and the intention was to confer upon the widow an absolute interest. The term ''Malik'' has been the subject to judicial interpretation by the Privy Council in several cases. In-Sasiman v. Shib Narain AIR 1922 PC 63 at p. 68 (H), their Lordships have held that the term ''Malik'' when used in a will or other document as descriptive of the position which a devisee or donee is intended to hold, had been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred. It was a case of a will, and their Lordships, therefore, added:

The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning.

In- Ram Gopal Vs. Nand Lal and Others, , his Lordship Mukherjea J. has endorsed this view together with the caution uttered by the Privy Council in construing an Indian document. Here the term ''Malik'' occurring in the compromise, Exh. 39, is used in respect of both the parties to the settlement and the context in which the expression is used as also the history of the litigation and the circumstances in which the compromise was arrived at must be taken as giving to Taralakshmi an absolute title to the property given to her.

For these reasons, therefore, we cannot accept the lower Court''s finding that Taralakshmi took a widow''s estate in the said property and that it was not competent to her to bequeath it by a will to her brother the present Appellant. In our judgment she did have the capacity to bequeath it by a will and the will having been duly proved, and having been made by her in a sound disposing state of mind, the Appellant is entitled to the estate comprised therein. It follows that the Plaintiff is not entitled to the declaration sought and that the suit is liable to fail. We, therefore, allow the appeal, set aside the decree of the lower Court and dismiss the Plaintiff''s suit with costs throughout.

Baxi, J.

I agree.