# SAHU MADHO DAS AND OTHERS v. PANDIT MUKAND RAM AND ANOTHER

- **Citation:** [1955] 2 S.C.R. 22
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahu-madho-das-and-others-v-pandit-mukand-ram-and-another-1490
- **Pages:** 26

## Headnote

1955
Morch 22
22
SUPREME COURT REPORTS
[1955]
SAHU MADHO DAS AND OTHERS
v.
PANDIT MUKAND RAM AND ANOTHER
(and connected Appeal)
(VIVIAN BOSE' B. JAGANNADHADAS and
B. P. SINHA JJ.l
Compromise or family arrangement-Proof of-Assumption of
antecedent title of some .sort in the parties-Re'versioner's assent to
an alienation-Legal effect thereof.
A family arrangement can, as a matter of Jaw, be inferred
from .a long course of dealings between the parties.
It is well settled that a compromise or family arrangement i3
based on the assumption tha! there is an antecedent title of some sort
in the parties and the agteement acknowledges and defines what that
title is, each party relinquishing all claims to property other than
that falling to his share and recognising the right of the others, as
they had previously asserted it, to the portions allotted to them
respectively. That explains. why no conveyance is required in thcsi..:
cases to pass the title from the one in whom it resides to the person
receiving it under the family arrangement. It is assumed that the
title claimed by the person receiving
th~ property under th-:
arrangement had always res!ded in him or her so far as the property
~alHng to his ·or her share is concerned and therefore no coriveyance
ts necessary.
But in view of the fact that the Courts lean strongly in favour
of family arrangements that bring about harmony in a family and
do .justice to its various members and avoid, in znticioation, future
disputes which might ruin them all the Supreme C0urt, carrying the
principle further, upheld an arrangement under which one set of
members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title
to all the properties resides in only one of their number (provided he
or she had claimed the whole and made such an assertion of title)
and are content to take such properties as are assigned to their shares
as gifts pure and simple from him or her, or as a Conveyance for
consideration when consideration is present.
The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed
by A to all the properties in dispute was his absolute title as claimed
and asserted by him and that it had always resided in him. Next, it
would effect a transfer by A to B, C and D (the other members to
the arrangement) of properties ~, Y and Z; and thereafter B, C •nd
D would hold their respective titles under the title derived from A.
But in that event, the formalities of law about the passing of title
,.
I ••
...,
2S.C.R.
SUPREME COURT REPORTS
23
by transfer would have to be obser\'ed, and unde1> the present state
of law either registration or twelve year's' adverse possession woilld
be necessary. But in the present case the arrangement was made in
1875 when the Transfer of Property Act was not in force and no
writing was required; and as there is no writing, the Registration
Act does not apply either.
Therefore; the oral arrangement of 1875
would be sufficient to pass title in this way and that is what
happened.
Once a reversioner has ·given his assent to an alienation,. whether at the time, or as a part of the transaction, or later as a. distinct
and separate a'ct, he is bound though others may not be, and having
given his assent he cannot go back on it to the detriment of other
persons; all the more so when he himself receives a benefit.
It is settled law that an aHenation by a widow in excess of her
powers is not altogether void but only voidable by the reversioners,
who may either singly or as a body be precluded from exercising
their right to avoid it either by express ratification or by acts which
treat it as valid or bindinfi.
The principle applicable to the present case is a rule underlying
many branches of the law which precludes a person who, with full
knowledge of his rights, has· once elected to assent to a transaction
voidable at his instance and has thus ele

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1955
Morch 22
22
SUPREME COURT REPORTS
[1955]
SAHU MADHO DAS AND OTHERS
v.
PANDIT MUKAND RAM AND ANOTHER
(and connected Appeal)
(VIVIAN BOSE' B. JAGANNADHADAS and
B. P. SINHA JJ.l
Compromise or family arrangement-Proof of-Assumption of
antecedent title of some .sort in the parties-Re'versioner's assent to
an alienation-Legal effect thereof.
A family arrangement can, as a matter of Jaw, be inferred
from .a long course of dealings between the parties.
It is well settled that a compromise or family arrangement i3
based on the assumption tha! there is an antecedent title of some sort
in the parties and the agteement acknowledges and defines what that
title is, each party relinquishing all claims to property other than
that falling to his share and recognising the right of the others, as
they had previously asserted it, to the portions allotted to them
respectively. That explains. why no conveyance is required in thcsi..:
cases to pass the title from the one in whom it resides to the person
receiving it under the family arrangement. It is assumed that the
title claimed by the person receiving
th~ property under th-:
arrangement had always res!ded in him or her so far as the property
~alHng to his ·or her share is concerned and therefore no coriveyance
ts necessary.
But in view of the fact that the Courts lean strongly in favour
of family arrangements that bring about harmony in a family and
do .justice to its various members and avoid, in znticioation, future
disputes which might ruin them all the Supreme C0urt, carrying the
principle further, upheld an arrangement under which one set of
members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title
to all the properties resides in only one of their number (provided he
or she had claimed the whole and made such an assertion of title)
and are content to take such properties as are assigned to their shares
as gifts pure and simple from him or her, or as a Conveyance for
consideration when consideration is present.
The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed
by A to all the properties in dispute was his absolute title as claimed
and asserted by him and that it had always resided in him. Next, it
would effect a transfer by A to B, C and D (the other members to
the arrangement) of properties ~, Y and Z; and thereafter B, C •nd
D would hold their respective titles under the title derived from A.
But in that event, the formalities of law about the passing of title
,.
I ••
...,
2S.C.R.
SUPREME COURT REPORTS
23
by transfer would have to be obser\'ed, and unde1> the present state
of law either registration or twelve year's' adverse possession woilld
be necessary. But in the present case the arrangement was made in
1875 when the Transfer of Property Act was not in force and no
writing was required; and as there is no writing, the Registration
Act does not apply either.
Therefore; the oral arrangement of 1875
would be sufficient to pass title in this way and that is what
happened.
Once a reversioner has ·given his assent to an alienation,. whether at the time, or as a part of the transaction, or later as a. distinct
and separate a'ct, he is bound though others may not be, and having
given his assent he cannot go back on it to the detriment of other
persons; all the more so when he himself receives a benefit.
It is settled law that an aHenation by a widow in excess of her
powers is not altogether void but only voidable by the reversioners,
who may either singly or as a body be precluded from exercising
their right to avoid it either by express ratification or by acts which
treat it as valid or bindinfi.
The principle applicable to the present case is a rule underlying
many branches of the law which precludes a person who, with full
knowledge of his rights, has· once elected to assent to a transaction
voidable at his instance and has thus elected not to exercise his
right to avoid it, . from going back on that and a\'oiding it at a
later ~tag,~. Having made his election he is bound by it.
Held, that in the present cas» the plaintiff who is in titulo now
that the· succession has opened out, had unequivocally assented to
the arrangement with full knowledge of the facts and accepted benefit qnder it, so he is now precluded from avoiding it, and any
attempts he made to go behi.nd that assent when 'it suited his purpose cannot render the assent once given nugatory even though it
W8S given when he was not in titulo and e\'en though the assent was
to a series of gifts.
Mst., Hardei v. Blwgwan Szngh, (A.LR. 1919 P.C. 27); Clifton v. Cockburn ((18341 3 My. & K. 76;; William v. William
((1866] LR. 2 Ch. 294); Rani Mewa Kuwar v. Rani Hulas Kuwar
([1874] LR. 1 I.A. 157); Khunni Lal v. Pobind Krishna ((1911]
LR. 38 LA. 87): Ramsumran Prasad v. Shyam Kuma.ri ((1922.]
LR. 49 I.A. 348J; Raja Modhu Sudhan Singh v. Rooke ([ 1897]
L.R. 24 LA. 164J; Bl]oy Gopal v. Sm. Krishna ((1906] L.R. 34
I.A. 87); Ram.~ouda Annaxowda v: Bhaμsaheb ([1927] LR. 54 I.A.
396); Dhiyan Singh v. Jugal Kishore 1[1952] S.C.R. 478 at 488);
Rangaywami Gounden v. Nar.hiappa Gounden ((1918] LR. 46 I.A.
72 at 86 &. 87 J, rekrr~d to.
C1v11
APl'U I.AT! .It RISU!Cl 10~:
Civil
Appeals
Nus. n and 1J4 uf 1950.
1955
Sahu Madho Das
and others
v.
Pandit Mukand
Ram and another
1955 --
Sahu Madho Das
and' others
v.
Pandit Mukand
Ram and another
24
SUPREME COURT REPORTS
[1955]
Appeals from the Judgments and Decrees dated
the 20th March 1942 of the Allahabad High Court in
First Appeal Nos. 154 and 152 of 1934 arising out of
the Judgments and decrees dated the 25th Augμst
1932 of the Court of First Additional Subordinate
Judge, and First Additional Civil Judge, 'Moradabad
in Original Suit Nos. 90 and 87 of 1931 respectively.
N. C. Chatterji, (S. S. Shukla with him) for the
Appellants.
Gopi Nath Kunzru, (B. P. Maheshwari with him)
for Respondent No. 1.
P. C. Agarwala, for Respondent No. 2 in Civil
Appeal No. 94 of 1950.
1955. March 22. The Judgment of the Court
was delivered by
BOSE J.-These appeals arise out of two suits
which were heard together along with two other suits
with which we are not now concerned. All four raised
the same set of questions except for a few subsidiary
matters. They were tried together and by common
consent the documents and evidence in the various
cases were treated as common to an. They were all
governed by one common judgment, both in the first
Court and on appeal. The defendants appeal here.
The· plaintiff, Mukand Ram, is common to all
four cases. He sues in each suit as the reversioner to
one Pandit Nanak
Chand who
was his maternal
grandfather. The family tree is as below :
,/
'<
...
.,.
Nanak Chand d. 23-7-56
'V: l\Ist. Pa to .. d. Jan. 1875
,-. -7---·---:-------;-.-i---- ---
1\Ist. l\Iaha Devi
l\Ist. Durga Devi
d. 1912
I d. 1888
H: Nathmal Das
H: Jwala Prasad
•
I
l\Ist. Har Devi
. d .. 10-!J-19
H: Bhawani
Shanker
l\IsL Ram Pyare
I
: I
I
. . I
.
I
I!
Banwari Lal
Sita! Prasad
Shyam Lal Pyare Lal
Bhukhan Saran
(dead)
(dead)
· (dead)
(Deft. 5)
.
.
I
· Brij Lal
(de~ii)
I
.
Kanhaiya Lal
(Dead)
I
l\Iukand Ram
(Plff. No. I)
~.,,
~
~ ~
t:l §"
.
... .
...
!J'
"·
....... ,~
~1~~:<S:~ ~
"-.
§ t
~ 0
•
c
~
(Ii
t::r
;; ;t
ti
~ ~
11o·
..
t,:)
00 9
~
00
~
~
t.'rj
....
,...
t.'rj
.a g
~
~
~
~
~
~
~
~
/
1955
Sahu fl,fadho Das
and others
v.
Pa1uiit Muka11d
Rani and another
BoseJ.
26
SUPRFME COURT REPORTS
[1955]
The plaintiff's case is. that the properties in the
four suits belonged to Nanak
Chand who died on
23-7-1856 leaving a widow Mst. Pato and three daughters, Maha Devi, Durga Devi and Har Devi. On his
death, his widow Mst: Pato succeeded. She died in
January 1875 and the estate then went to the three
daughters. Of them, Durga Devi died in 1888, Maha
Devi in 1912 and Har Devi in 1919. The plaintiff's
rights as reversioner accrued on Har Devi's death on
10-9-1919.
But before this came certain alienations
which the plaintiff challenges in the present suits. The
suits were filed on 8-9-1931.
ln Civil. Appeal No. 92 of 1950, the challenge is tu
a mortgage effectt;d by Durga Devi on 3-3-1887
in
favour of Sahu Bitthal Das. The mortgagee sued on
his mortgage, .obtained a decree and in execution purchased the properties himself. The plaintiff's case is
that Durga Devi only had a life estate and, as there
was no necessity, the mortgage ·and the subsequent
auctinn purchase do not bind him.
In Civil Appeal No. 94 of 1950, there are two alienations, 1both sales. The first, dated 23-9-1918, was
by Pyare Lal (son of Durga Devi) in favour of Shyam
Lal, son of M ulchand..
(This is ncit the Sh yam Lal
who was Pyare Lal's brother). The vendee later sold
the properties to the first and second defendants on
5-3-1927. One of the vendees, the first defendant, is
yet another Shyam Lal: Shyam Lal son of Harbilas.
The other sale was by Brij Lal's guardian on behalf of Brij Lal, "Brij Lal then being a minor. It was
on 25-11-1919 in favour of Chheda Lal. The first and
second defendants. pre-empted this sale after a fight
in Court and took possession under the decree which
they obtained.
Tlie plaintiff's case is that Har Devi was alive at
the date of the first sale and as the reversion had not
opened out Pyare Lal had no power to sell. In the
case of the second sale, the reversion had opened out
but Brijlal heing more remote than the plaintiff got
no title, so that sale is also bad.
The defendants' case b that the properties in these
'
•
I
2 S.C.R.
SUPREME COURT REPORTS
27
two suits (as also in the other two suits with which
we are no longer concerned) did not ·belong to Nanak
Chand· and formed no part of his estate; they belonged exclusively to Mst. Pato as part of her personal
estate.
On 22-1-1864 Mst. Pato executed a
doeument
which she called a deed of agreement but which, if it is
anything at all, is a will. There are no other parties to
it and she purports thereby to dispose of her properties after her death. The defendants in Civil Appeal
No. 92 of 1950 have called it a will. After sayit1g that
she wiTl remain in possession and occupatidn as long
as she lives, Pato says that after her death her three
daughters will be the owners and will either remain 'in
joint possession or will divide
the estate in equal
shares and, in that event, will take possession of their
respective shares and will be the "owners" of them.
But before she died Pato made another disposition
of her estate during her life time .in the year 1875
which, of course, abrogated the will. This was done
orally. The defendants say that this was a family
arrangement in which each of the three daughters was
given certain properties absolutely so that each became the absolute owner of whatever fell to her share.
Pato also gave properties to each of her four grandsons who were then Uving, _namely
Kanhaiya Lal,
Mukand Ram, Banwari Lal and Sital Prasad. The
defendants asserted that they also took separate and
absolute estates _immediately and said that each has
been holding and dealing with the properties. so divided, separately and as ·absolute owners, ever since.
Tolms, at the dates of the transfers now challenged,
each alienor had an absolute title to the properties
alienated and the plaintiff has none.
The trial Court he4l that though most of the
properties in Pato's hands came from her · husband
Nanak Chand, the plaintiff had not shown that the
properties with which his_foar suits were concerned
formed part of Nanak Chand's estate.
An issue was also tramed about the family settlement and one about estoppeJ. On both those points .
1955
Sahu Madho Da
a11d others
v.
Pandit M11ka11d
Ram tmd anothe
Bo.<e .T.
1955
Sah1l Madho Da.~
and others
v.
Pandit Mukand
Ram aQl1 another
B1HeJ.
28
SUPREME COURT REPORTS
the learned Judge found against the plaintiff.
result was that all four suits were dismissed.
[1955]
The
The High Court reversed these findings on appeal
an.d held that all the properties, including the ones in
smt, formed part of Nanak
Chand's
estate.
The
learned Judges also held that
though there was
a
family arrangement, it was a purely voluntary settlement made by Pa to and was not made .as the result of
any dispute and that in any case it did not bind the
plaintiff who was not a par.ty to it and who does not
claim through any of those who were. They also held
that there was no estoppel. Accordingly, the plaintiff's claim was decreed in each of the four suits.
Appeals were filed here in all four suits by the
various defendants but Civil Appeals Nos. 91 and 93
of 1950 were dismissed for want of prosecution, therefore the decree of the High Court in the two cases out
of which those appeals arose will stand. We are now
only concerned with Civil Appeals Nos. 92 and
94
of 1950.
In the lower Courts much of the effort was concentrated on finding out which items out of a large
mass of property belonged to Nanak Chand and which
did not. We do not intend to look into that because it
it is unnecessary on the view we take. We will therefore assume, without deciding, that all the properties
in dispute were part of Nanak Chand's estate.
We will deal first with the family
arrangement.
The learned counsel for the plaintiff argued that the
defendants never set up a family arrangement though
they have used the words "family settlement".
He
contended that what they really pleaded was
a gift
out and out by Pato. It was pointed out that the
defendants never suggested a dispute. neither did they
suggest that any one ever
questioned
or doubted
Pato's absol11tc title to the property. Therefore, it was
argued the present case, which is based
on the
assumption that the property was not Pato's and that
she was laying wrongful claim to it, cannot be allowed
because it flies in the face of the defendants' pleadings.
..
;
••
2 S.C.R.
SUPREME COURT REPORTS
29
There is not much in this objection. The defen-·
dants did plead a family arrangement and the matter
was put in issue and fought' out. The
defendants'
case was that all the property was Pato's. The plaintiff's case was that. it was all Nanak Chand's. The
issues were-
" 4. Whether Mst. Pa to gave properties separately to each of her three daughters and to daughter's
sons and put them in proprietary possessior1 and they
remained absolute owners of their properties and what
is its effect on the case?.
5. Whether the
arrangement
mentioned
in
issue No. 4 was by way nf family settlement and what
is its effect on the case?"
These issues are broad enough to cover the present
point. If the properties really
belonged
to Nanak
Chand, as
the plaintiff cla.ims,
then
the case for
a family settlement becomes all the stronger, for it is
clear that Pato laid clain1 to them as her own properties of which she could dispose by will, for that is
what the document
of 1864 really is.
If, on
the
other hand. they were her properties.
as the defendants say, then she had the right either to gift them
outright or to settle them as the defendants say she
did by way of a
family
arrangement.
Jn
either
case. the matter was fully fought out and neither side
was misled.
The real question we have to decide is, has the
family arrangement been proved?
We think it has.
The direct evidence on this point is that of Shyam
Lal (D.W. I in C.A. 94 '50) and the
first defendant
there. He tells us that he
had money lending transactions with Har Devi. Kanhaiya Lal, Shyam
Lal
and Pyare Lal on unregistered bonds from 1902 till
1910 and from 1910 on registered mortgage bonds. He
says that-
"They" (tlrat is to say. Har Devi', Mukand Ram.
Kanhaiya Lal. Shyam Lal and Pyare Lal)
"showed
one copy of a deed of will and said that Mst. Pato
had given the proper.ty to her daughters and grandsons ......... I am illiterate and Kanhaiya Lal brother of
Mukand Ram had the deed of will read over to me at
5-8 SCT/ND/82
1955
Sahu Madho Das
and others
v.
Pandit M11k1111d
Ram and 01101/wr
Bo.,e J.
30
SUPREME COURT REPORTS
[1955
1955
the time of mortgaging property in 1909 or 1910. It
S:i/111 Madlm Das was by means of that paper that I came· to know
and arhers
that Mst. Pato had made her daughters and grandPandir vMnkand sons absolute owners and
I know of the property
flam and another 'which was mortgaged to me".
Bose},
Now it is true that the so-called will of 1864 does
not make provision for the grandsons, nor
does it
expressly confer an absolute estate on the legatees,
but the witness is illiterate and had
to depend
on
what he was told about the contents and meaning of
the document, and what we have to test is. the truth
of his assertion that the plaintiff Mukand Ram
and
Kanhaiya Lal, and other members of the family, told
him that Mst. Pato had given the property to her
daughters and grandsons. If they told him this,
as
he says they did, then it operates as an
admission
against Mukand Ram and shifts the burden of proof
to him because he was 011e of the persons who made
the statement. The statements made by the others
are not relevant except in so far as they prove the
conduct of the family.
The plaintiff IP.W. 11 in C.A. 91I50) admits that
Mst. Pato divided the estate but says. that it was only
for convenience of management and that neither she
nor her daughters had. or pretended to have. anything
more than a lifo estate.
He denies that
there was
any gift or family arrangement. But he had to. admit
that the grandsons also got properties at
the same
time. His explanation is that it was for the purposes
of "shradh" and pilgrimage to Ga ya and he says that
though they ~ere given possession they were not the
"owners".
We now have to choose between these two witnesses and see which is telling
the truth.
But before .doing that we will advert to
another member
of the family, Pyare Lal, who wa's
examined as
a
witness (0.W. 17) in C.A. 92/50. ·He admits a series
of sales made 6y him but says that he had no will
of his own and that he did just what Mukand Ram
told him.
Now to go back to the year' 1864 when Mst. Pato
rpade the so-called will of 1864. This document was
2 S.C.R.
SUPREME COURT REPORTS
31
construed by the Privy Council in Mst. Hard:'i
v.
Bhagwan SinghC) and their Lordships said-
'' In the events which happened this document
did not become operative, but it is relevant as showing
that at the date of its execution Pato was claiming an
absolute right to dispose of the whole of the scheduled property".
Mukand Ram was not a party to that litigation and
the. decision does not bind him but it operates as a
judicial precedent
about the
construction
of that
document, a precedent with which we respectfully
agree. She says there that the property "belongs
exclusively to me without the participation of anyone
else". That assertion, coupled with the fact that she
purported to dispose of the property after her death
(which she could not have done as a limited owner).
and taken in conjunction with
the subsequent conduct of. the daughters and that of the grandsons, imports admissions by them that that was her claim and
leaves us in little doubt about what she meant. We
therefore reach the same conclusion as
the Judicial
Committee and hold that Mst. Pato claimed an absolute estate in 1864.
We will now examine the conduct of the family
after Pato's death and the claims
put forward
by
them from time to time. First. we have the statement
of Mukand Ram in the witness box (P.W. 11 in C.A.
91/ 50)
that ·on Pa to 's
death
her daughters took
separate possession of the properties in the following
villages and towns:
Har Devi
Durga Devi.
(I) A.LR. JYIY 1'.C. 27.
Qutabpur Amawti.
Shakerpore.
Lalpur.
Bagh Alam Sarai.
Houses, Shops. etc. in Bazaar Kot,
Sambhal.
Keshopur Bhindi.
Tatarpor<'. Ghosi.
Half Bilalpat.
Qumharwala Bagh.
JY55
Sa/111 Madho Das
and other.<
v.
Pandit Makand
Ram and tuwthrr
BoseJ.
J.955
Sahu .hfadlio Das
and others
'·
P1111dit Mukand
&nn a11d u11otlter
Bos11,J.
32
SUPREME COURT REPORTS
[ 1955]
Maha Devi.
Shehzadi Serai.
Houses, shops, etc.
in Sherkhan
Serai, Sam b ha l.
Guretha.
Behrampur
Half Bilalpat.
Mahmud Khan Serai.
Houses. etc. in Kot.
Grove "in Alam Serai
The plaintiff also admits that the grandsons got
some properties but does not give details. All he
says is that they were given properties "for purposes
of performance of 'shradh' and pilgrimage to Gaya".
Next, we have a Jong series of alienations by different members of the family with claims to absolute
ownership which could only have sprung from titles
derived either from a gift from. Pato or from a family
settlement.. We say "family settlemeJ1t" because we
know now that the bulk of the property (and according to the High Court the whole of it) was Nanak
Chand's. We also know that some of it was purchased
by Pato after Nanak Chand's death from the income
of the estate. Pato .had the right to purchase properties for herself if she wanted instead of adding
them to her husband's estate and we
know she
claimed title to the whole as an absokite owner in
1864. This claim may have been due to a mistaken
view of Hindu Jaw
that in the absence of sons the
widow gets an absolute estate, or it may have been
due to other reasons. but that she made the claim is
clear, and the subsequent conduct and statements of
the family show that they either ad"mitted the correctness of he.r claim and accepted the properties as
gifts from her or they agreed to and acted on a family
settlement to avoid disputes on
the basis that each
got an absolute title to whatever properties fell
to
his or her share at the time of the division:
The grandsons were minors at the time and were
not parties to this arrangelncnt, whatever its origin,
and of course the widow and daughters could not enlarge their limited estates so as to bind the grandsons
~; ;
·---~· ------·
2 s.c.R.
SUPREME COURT REPORTS .
33
\I '
however much they agreed among themselves.· But
for the moment we are notconsideringthelegal effect
of whatever the arrangement was but whether the
conduct of the family gives rise to an inference that
there was an arrangement in fact.
A family arrangement can, as a matter of law, be
implied from a long course of dealings between the
parties:
Clifton v.
Cockburn(') and William v.
William('); and we have such a course of dealing here.
First, there is a lo.ng series of alienations by Har Devi
stretching from 1877 down to 1916. \Ve tabulate
them below with the recitals she made .!I bout her title.
17-1-77 Jiiortgage - Q17tabpur Amawti
"owned by ~fil0"~c--Ex~ LL-1 (C.A. 94)
11-1-78
do
do
Owner: "devolved
on me from my
Ex. 2Jl (C.A. m)
mother".
20-3-81
·do
do
Owner: "right of Ex. 2Hl (C,A. 91)
·do
do
inheritance from
my father".
7-9-83
Sale.
La1pur
Owner: ""right of
inheritance"~ - :; Ex. 2Gl (C.A. 91)
23-8-87 ]Iortgage - Qutabpur Amawti
No recital
Ex.L
(C.A. 92)
15-7-05
do
do
Absolute owner
with Ka.nhaiya
Lal and ?iiukand
Ex. BB-1 (C.A. 94)
Ram; ..
19-11-08
do
do
No recital
Ex. M-1(C.A.94)
14-11-U
do
do
do
Ex.V
(C.A. 9_•)
23-3-15
do
do
Owner: with
Ex.X
(C.A. 92)
liiukand Ram
17-2-16
do
do
. \Vi th Mukand
Ex. N-1 (C.A. 9.1)
Ram. No recital
28-3-16
do
do
0\\-"ller: with
-1.Iukand Ram
and hiS son
RamGopal
Ex. MM·l (C.A. 9')
22-1-18
do
Behrampur
Owner: with
Ex. DDD-1(C.A.91)
Buzurg
!IIukand Ram
and Bhukan
Saran
23-3-18
do
do
Owner: with
Ex. Ml (C.A. 91)
liiukand Ram
and Pyare Lal
It will be observed that Har Devi sometimes
claimed to be absolute owner by.right of inheritance
from her father and at others from her mother in respect of the same village, but whichever way it was,
(1) [1834] 3 My. & K. 76.
(2)·[1866] L.R. 2 Ch. 294.
5
Sahu Aiadho Das
and others
v.
Pandit Aiukattd
Rani and another
B.oseJ.
1955
Sahu Mad/to Das
and others
V,
Pandit M11kaud
Ram and another
Bose J.
34
SUPREME COURT REPORTS
[1955]
the claim to absolute. ownership was consistent
throughout. This could only be referable to a family
settlement where the origin of the property was in
doubt but which was settled by bestowing, or purporting to bestow, an absolute estate on the daughters.
It will also be noticed that in later years Har Devi
joined with Mukand Ram but still claimed an absolute
.estate along with him. This was for the following
reason: Soon after Mukand Ram attained majority,
the mother and sons quarrelled. On 11-2-1890 they
referred their dispute to arbitration, Ex. RR-1 (C.A.
94).
Mukand Ram became a major in
1890 and
Kaqhaiya Lal in 1884.
~t appears from their agreement of 11-2-1890 that Har Devi claimed an absolute
title while her sons said she was only a limited owner.
But the sons agreed to accept a decision to the effect
that she had an absolute estate in the whole of the
property in dispute between them should the
arbitrator so decide.
The properties wereQutabpur Amawti,
Shakerpore;
Houses, shops, etc. in Mohalla Kot in Sa111bhal.
Another significant thing is that in this document
both mother and sons agreed that all of Nanak Chand's
grandsons then in being were in separate possession
and absolutely entitled to certain other properties
which they expressly agreed
were not to form
the
subject-matter of the arbitration. Here again, these
titles could only be referable to a family arrangement,
for the grandsons could not have got an absolute estate
in any other way; nor could Har Devi. Mukand Ram
tells us as P.W. 11 (C.A. 91) that he and his brother
Kanhaiya Lal got Shakerpore and
some shops in
Bazar Kot, Sambhal, as a result' of this arbitration,
but does not say what happened to Qutabpur Amawti.
But it i~ significant that Har Devi's
dealings
with
Qutabpur Amawti after this date were all jointly with
Kanhaiya Lal and f\:'lu~~nd Ram. It may be that the
arbitrator awarded 1t imntly or they agreed to hold
it on that basis. We do not know. All we know is
that they mortgaged it jointly.
"
·,
2 S.C.R.
SUPREME COURT REPORTS
35
Behrampur fell to Mukand Ram's share and in the
mortgage or the property in 1918 Har Devi joined
with M nkand Ram and Murari Lal's son
Bhukan
Saran in one case and with Pyare Lal in the other.
But except for the last two mortgages of J 918 the
conduct of Har Devi and her sons for 39 years from
1877 to 1916 as disclosed in these deeds is only consistent with the family arrangement which the defendants allege. for on no other hypothesis could either
the mother or the sons have laid claim to an absolute
estate.
We will next turn to Durga Devi. She died in 1888
but before she died she mortgaged Keshopur Bhindi
which had fallen to her share on 3-3-1887 bv Ex.U-1
IC.A. 93) and claimed to he the owner.
-
Then there is Maha Devi. The only direct evidence
we have of her conduct is a written statement that
she filed in O.S. 177 /97, Ex. 2BI (C.A. 91). She asserted there on 5-1-1898 that she had been in proprietary possession
and
occupation
of her
divid~d
share of the property obtained by her from
lier
mother ut1der a
deed
of will. The circumstances
in
which
she
made
this statement
are
to
be
found in the judgment in that suit, Ex. GI IC.A. 91).
The suit was by Har Devi against her sister and a
transferee who claimed title through the other sister
Durga Devi. Har Devi's allegation was that
Durga
Devi had mortgaged Keshopur Bhindi and Tatarpore
Ghosi on 3-3-87. The mortgagee sued on his deed and
obtained a decree for sale. In execution of the decree
he purchased the properties himself.
Durga
Devi
died in 1888 and Har Devi claimed that Durga Devi
had only a limited estate and that Maha Devi and
herself were entitled to the properties by survivorship.
Maha Devi refused to support her sister and
took up the position that each sister, or at any rate
that she, Maha Devi, got an absolute estate in the
property that came to her and of which she was placed
in separate possession. from Pata. On 16-12-10 Maha
Devi mortgaged Behrampur Buzurg and claimed that
it belonged to her. being property left to her by her
mothe.r in which no one el~e had any rights. The deed
1955
Salm Madho Das
and otbers
v.
Pandit Mukand
Ram and another
BoseJ.
1955
Sahu Madho Das
and others
V.
Pandit M11ka11d
Ran1 and a1101 !ter
BoseJ.
36
SUPREME COURT REPORTS
[ l 955]
is Ex. BB-I (C.A. 9JJ. On 2-7-11 she sold Bilalpat and
claimed to be its exclusive propr~etor, Ex. R-1 <C.A.
93).
We now come to two statements made tw Har
Devi a11d Maha Devi as witnesses in that suit. Strong
exception was taken to their
admissibility
because
the plaintiff was not a party to the earlier litigation.
It is a moot .Point whether they would be admissible
under section 32(3) of the Evidence Act, but we need
not decide that because we do not intend to
11sc
them as proof of the truth of the facts stated in them.
But they are, in our view, admissible to show the conduct of these two ladies. The conduct of the various
members of the family is relevant to show that their
actings, viewed as a whole, suggest the existence of
the family arrangement on which the defendants rely.
At this distance of time gaps in evidence that would
otherwise be available have to be filled in from inferences that would normallv have little but corroborative value. But circumstanced as we are, inferences
from the conduct of the family is all that can reasonably be expected in proof of an arrangement said tu
have been made in I ~75. The statements that Har
Devi and Maha Devi made as witnesses are" therefore
as relevant as recitals made by them in deeds
and
statements made by them in pleadings. They do not
in themselves prove the fact
in issue,
namely
the
family arrangement, because, in the absence of section 32< 3), they are not admissible for that purpose.
but as their conduct is relevant these statements are
admissible as evidence of that conduct.
Maha Devi's statement is Ex. 2-A I IC.A. 911 and·
Har Devi's Ex.
2-F I IC.A. 91 ).
Both speak of an
arrangement effected by Pato in her life time and say
.that they entered into separate possession of the properties by reason of that arrangement. Har Devi says
in. addition that the grandsons were included in the
arrangement and given properties too. Therefore. we
know that this is the title under which each claimed
to hold in O.S. No. 177197. It is proof of their a'-5crtion of this title at that early date and though it is no
proof of the truth of those assertions it is proof of the
2 S.C.R.
SUPREME COURT REPORTS
37
fact that the assertions were made and that is all we
need at the moment.
We turn next to the conduct of the grandsons,
and first we will consider the plaintiff Mukand Ram
and his brother Kanhaiya Lal. The plaintiff attained
majority in 1890 and from that date down to 1921 we
have a series of assertions of a title that can only
spring from the family arrangement.
First, we have
the deed of
11-2-90. Ex. RR-I (C.A. 94) which we
have alreadv considered in connection with Har Devi.
This is the agreement between his brother and himself
on the one hand and Har Devi on the other to refer
their dispute to arbitration. We have already commented on the fact that the two brothers asserted an
absolute title to propertie5 that were in their possession and acknowledged the absolute title
of Pyare
Lal and Shyam Lal to the properties of which they
were possessed. The only dispute they were prepared
to submit
to arbitration was about the
properties
in Har Devi's possession and there, they were prepared to accept a decision upholding Har Devi's claim
to an absolute estate.
After this came the following dealings:
20-11-91
S~le
Shahzadi
Sarai
28-7-93
S1lc
Dugawar
2-7-96
Mortg:ige
Qntabpur
30-1-00
Sale
An1awn
Bazar Mahmud Khan
Sarai. Samrhal
15-7-05
Mortgage
QJ~abpJr ·
Amawfi
r,. -RSCl./ND.182
Proprietary posEx. 2 Kl (C.A. 91)
session "devolved
on us by right of
inheri~ance from
Pato"
Proprietary posEx. 2 El (C.A. 91)
session "by right
of inheritance".
"anc9stral
and Ex.KK-1 (C.A. 94)
purchased
by
us".
"POS(}essed
by us ..... without tlte part icipar ion of anybody
else".
"Proprietary posEx. U (C.A. 92)
session "by "right
of inheritance":
"without the participation of anyone else".
o.vners:wi'h Har Ex. BB-I (C.A. 94)
Dev; "without the
part;cipat ion of
any one else".
1955
Sahu Madho Das
and others
••
Pandit Mukand
Ram and anotha
BoseJ.
1955
Sahu Madho Dtlf\
and other.\'
V.
Pandir Mukand
Ra111 and a11nr/1er
nose J.
38
SUPREME COURT REPORTS
[ 1955 J
Kanhaiya Lal died about this time and thereafter
Mukand Ram continued to make transfers claiming
to do so in his own right.
He
made the following
along with Har Devi. We have already analysed them.
They were-·
19-11-08
14-11-14
23-3- 15
17-2- 16
28-3- 16
22-1- 18
2:>-3- 18
Ex.MI
Ex.V
Ex.X
Ex.N-l
Ex.MM I
Ex.DODI
Ex.Ml
(C.A.94)
!C.A.92)
(C.A.92)
(C.A.94)
(C.A.94)
\C.A.91)
1C.A.91)
But in addition to these he made the following
transfers on his own :
18-i-l 6
&\le
Lc\shkarpur
Absolu!c owner.
Ex. PP-I
<C.A. 94)
24-4-22
Sale
Hou~c:s, etc.
do
Ex. Y
(C.A. 92)
jn San1bhal
23-11-22
Sale
Qu!abpur An1aw1 i
do
Ex.Q
(C.A. 92)
Next, we come to Shyam Lal. His alienations were
as follows:
19-6-97 Mortgage.
9-11-07
do
17-9-09
do
Shops in Sambhal. Owner.
Ex. W-1
House in Sambhal. No rcci1al
Ex. TT-J
Bila/pat.
do
Ex. UU-1
(C.A. 94)
(C.A. 94)
(C.A. 94)
In addition, he made the following transfers jointly with his brother Pyare Lal:
18-1-06 Mortgage.
Bilalpat & shops No rlcitals. Ex. fEE-1
(C.A. 94)
in San1bhal.
21-2-10
do
Bilalpat & Sabz
do
Ex. AA-1
IC.A. 94)
Pyare Lal also made two transfers on his own--
23-9-18
Sale
llilalpat.
"Devolved on
Ex. 15
(C.A.94)
me"
from
Nanak. Chand
by righ'. of inheritance
2.1.20
do
do
do
Ex. 18.
(C.A. 91)
Lastly, there is Bhukhan
Saran, who is Maha
Devi's daughter's son. He transferred as follows:
26-3-18
Sale
Houscs,.c:c. in
Absolute and
S'ln1bhal.
exclusive
Ex. MM-I
(C.A. 92)
owner.
9-1-21
RclinQuishmcnt.
Hilalpa!
do
Ex. DD-1
(C.A. 93)
These documents disclose a long line of conduct
on the part of the various members of the family and
show that from 1877 down to 1922 each dealt with
the properties in his or her possession as absolute
..
2S.C.R.
SUPREME COURT REPORTS
39
owner and set up exclusive proprietary title to the
properties transferred.
It is true the source of title
was not consistently stated, sometimes it was said to
be Pato and at others Nanak Chand. but the assertion to a separate, exclusive and absolute tit!(! in each
is common all through.
There is only one way in
which they could have got these exclusive titles and
that is by a family arrangement, for whether the proparty was Nanak Chand's or whether it was Pato's in
neither event could any one of the these persons have
obtained an absolute estate on the dates with which
we are concerned : the grandsons, because the reversion had not opened out; the daughters because, either
way, they would only be limited owners under the
Hindu law. But if there was a family arrangement
assented to by the daughters and later accepted and
acted on by the sons when they attained majority,
their claim to separate and independent absolute titles
is understandable.
It does not matter whether the
claims were well founded in law because what we are
considering at the moment is not the legal effect of
the arrangement but whether there was one in fact.
Now, in spite of all these dealings, the conduct of
Har Devi and Mukand Ram and Kanhaiya Lal was
not always consistent.
They were greedy and while
insisting that they be allowed to hold on to
what
they had got, they wanted to snatch more if and when
they could. The ball started rolling in 1890 as soon
as Mukand Ram attained majority. There was the
reference to
arbitration in that year to settle their
dispute with their mother Har Devi. But even there.
there was the inconsistency regarding their own properties to which we have already referred.
Mukand
Ram's later explanation in the witness box that they
got those properties for :,/1radh purposes and for a
pilgrimage to Gaya cannot be believed.
·
Next, ther.e was the suit by Mukand Ram and
Kanhaiya Lal against their aunt Maha Devi in 1895:
S. No. 21I1895. Ex. 31 fC. A. 91). That was occasioned
by two sales by Maha Devi on 19-2-83 and 20-5-85.
She stoutly maintained tli<~t she had an absolute title.
1955
Sahu Madho Du>
<111d others '
v.
Pu11di1 M11ku11d
Ram and wrother
BoscJ.
40
SUPREME COURT REPORTS
[1955 J
1955
The litigation had a chequered career and ultimately
Sahu Madho Das the suit was dismissed as barred by time.
and fl/hers
V,
Pundit Mukand
Ra1n and another
Bose J.
'
Next came suit No. 177 of 1897, Ex. GI (C.A. 91),
in which Har Devi sued Maha Devi and a transferee.
This time it was to set aside an alienation by Durga
Devi, Durga Devi then being dead. Her Devi clainied
that the property was Nanak Chand 's and that the
daughters were limited
owners.
But again
Maha
Devi stood by the family arrangement and asserted
an absolute title in all the daughters; Ex. 2B I (C.A.
91).
We have seen that Har Devi entered the box
and admitted the arrangement: Ex. 2F-l IC.A. 91J.
The suit very naturally failed, but the result of the
litigation is nor relevant because the plaintiff was not
a party.
What we are examining is the conduct of
Har Devi.
In 1913 Har Devi tried again after Maha Devi's
death, this time against alienees from Maha Devi.
This is the suit that went up to the Privy Council.
Mst. Hardei v. Bhagwan Singh ('). She failed
again.
Having failed against Maha Devi in the 1897 litigation, Har Devi next tried her luck against Maha
Devi's grandson
(daughter's son)
Bhukhan Saran,
after Maha Devi's death. The suit is O.S. 52/ 14, Ex.
78 (C.A. 94).
This time she succeeded with
respect
to some items and failed as regards the rest.
But
again the result is irrelevant : Exs. 6 and 8 (C.A. 94).
Now what we are examining at the moment is
whether Shyam Lal, D.W. I in C.A. 94, is to be believed when he says that Mukand Ram, among others.
told him about the family arrangement under which
Pato had divided all her property between h .. r daughters and their sons. It is evident from what we have
said above that Mukand Ram had been consistently
asserting such a title for 3 J years from J 891 to J 922
despite his aberrations in 1890 and 1895.
In particular he did this whene.,.er he wanted to borrow
money or to sell property: and he makes a si!!niflcant
admission in the witness box as P.W. 11 in C.A. 91
that- -
(I) A.T.R. 1919 P.C. 27.
2S.C.R.
SUPREME COURT REPORTS
41
"In the mortgage or sale of the property over
which Mst. Har Devi was in possession none of her
sisters or sisters' sons joined. Similarly, in the sale
or transfer of the property that came to Durga Devi,
none of her sisters or other sisters' sons joined".
He also admits that there was a division and separate possession from 1876. He says that it was for con·-
venience of management and says that it was after
Pato's death, but in view of the mass of evidence that
we have just analysed, we think it far more likely
that he told Shyam Lal just what Shyam Lal says he
did. After all, he was borrowing money from Shyam
Lal on each of these occasions; so there is
every
reasons to believe that he would have told Shyam Lal
what he had so repeatedly asserted to his other transferees. We accordingly believe Shyam Lal.
That at once shifts the burden of proof to the
plaintiff, and what is his explanation.? First, a division
of the estate for convenience
of management
(but
that does not explain the long chain of unchallenged
transfers bar Har Devi's efforts in four cases); and
second, that the grandsons got property absolutely for
the purposes of shradh and pilgrimage:
(~n explanation which we disbelieve). We are therefore left with
the plaintiff's admission to Shyam Lal and that admission, coupled with the conduct and actings of the
family, firmly establishes the family arrangement. We
accordingly hold that, whether the property belonged
to Pato or to Nanak Chand, Pato claimed an absolute
right which the daughters acknowledged, and in return they and their sons were given separate
and
absolute estates in separate portions of the property
immediately.
This arrangement bound the daughters because
they were parties to it and received good consideration.