ASA DEVI Vs. CHAMPA DEVI

JUDGEMENT

(1.) This is an appeal by a plaintiff in a suit for possession of certain zemindari and house properties which were detailed in extenso at the foot of the plaint. The suit which has given rise to this appeal arose under the following circumstances:

(2.) Rikhi Lal and Raghubans Sahai were two brothers who owned considerable house and zemindari property in the district of Saharanpur; they also owned certain mortgagee rights under two usufructuary mortgage deeds of the value of Rs. 42,000/-. Raghubans Sahai was the first to die; he died some time prior to 1905 leaving behind his son Shambhu Nath as his heir. Rikhi Lal, the other brother, died in 1905 leaving a widow Shrimati Asha Devi who is the plaintiff in this appeal. Rikhi Lal before his death had executed a will in favour of the plaintiff and it was on the basis of this will that she succeeded in getting mutation effected in her name on a moiety share of the family property.

(3.) Disputes, however, arose between Sm. Asha Devi on the one hand and Shambhu Nath, Raghubans Sahai' 3 son, on the other. These disputes, however, were amicably settled by means of a family arrangement. The settlement which was arrived at was recorded in a document which was registered and which, in effect, forms the basis of the present suit. This document, which we shall refer to hereafter as the family arrangement, was executed by Shambhu Nath and Asha Devi on 17-8-1908. By means of this family arrangement it was settled that Shambhu Nath was to be the owner in possession of the entire properties including the mortgagee rights in respect of the two usufructuary mortgage deed, except a certain house No. 7 and certain other houses mentioned in list (b) of the list appended to the family arrangement. Asha Devi was also to receive from Shambhu Nath a sum of Rs. 16,000/- in cash at the time of the registration of the family arrangement, and she was to receive annually a sum of Rs. 1,300/- as maintenance; this sum of Rs. 1,300/- was payable by Shambhu Nath, in two half-yearly instalments falling due on 15th February and the 15th August every year. The family arrangement also made provision that in the event of three consecutive defaults in respect of the maintenance payable half-yearly, the family arrangement was to terminate, or, in the words of the arrangement Asha Devi was given: "The right to cancel this deed of compromise and obtain possession over that property which she has left in possession of the 1st party at present and which is mentioned at the foot of this deed of compromise." (These are the words in which the family arrangement has been translated and these words appear at page 85, line 35 of the paper-book). According to the family arrangement if Asha Devi did not obtain possession over certain property on account of its being, redeemed, she was to receive a sum of Rs. 5,000/- in cash with interest at the rate of eight annas per cent, per mensem from the date of cancellation after allowing a set-oft to the extent of Rs. 16,000/-which was to be paid to her under the family arrangement at the time of registration. The document also created, a charge in respect of this sum of Rs. 5,000/- on certain items of property enumerated in list A of the family arrangement. Asha Devi was also given the right to recover the arrears of maintenance in the event of this falling into arrears. These were the material conditions provided for by the family arrangement.