CHANDER Vs. INDRAJ

JUDGEMENT

(1.) THIS second appeal has been set down for hearing before me as the result of a review having been granted against the judgment and decree of a learned Single Judge of the former High Court of Matsya dated the 12th March, 1949 by a bench of this Court (on the abolition of that court and the integration of the Matsya Union with the State of Rajasthan) by which the plaintiffs' suit was, affirming the decrees of the two courts below, dismissed. The following pedigree table will be helpful in understanding the contentions between the parties: Sedu Ramsukh Godha Deva Khuba (died issueless) Rura Kana Bhinya Sewla Soonda (died issueless) Teja Mana (died issueless) Bharta (Plf) Chander (Plf) Mulia (Plf) Jeeta Indraj (Deft) Dhokal (died issueless) Gumna (died issueless) Sobla (died issueless) The plaintiffs are the sons of Rura, brother of Khuba, both being sons of Ramsukh, while the defendant Indraj is the great grandson of Godha, brother of Ramsukh.

(2.) THE dispute relates to certain agricultural lands specified in schedule Ex. P-1 situate in village Hajipur in the then State of Alwar. THE case of the plaintiffs is that the deceased Khuba was the biswedar of these lands, and that on his death, in 1937, the plaintiffs applied for the mutation of their names in the revenue records as they were the next of kin of the deceased Khuba, their uncle. THE defendant Indraj objected to this. By his order dated the 22nd May, 1939, the Revenue Minister of the former Alwar State ordered that the lands be mutated half and half in the names of the plaintiffs and the defendant. THE plaintiffs appealed from that decision but were unsuccessful. Consequently the plaintiffs brought the present suit on the 8th January, 1940, in the court of the Munsiff Bansur for a declaration that they were the next heirs to the deceased Khuba, and also for possession of the entire lands in dispute. THE defendant Indraj resisted the suit. His principal contention, and it is that with which only we are concerned in the present appeal, was that there had been a previous litigation between Khuba deceased on the one hand, and Bhinya son of Godha and Mana grandson of Godha and Rura brother of Khuba and Soonda a nephew of Khuba, on the other, regarding the lands in dispute, among other lands, and that dispute was decided by a compromise. THE dispute appears to have arisen as Khuba had somehow got himself entered as being in exclusive possession of the family lands in the revenue records while the other persons named above who were all members of the same family claimed that they were also entitled to be entered as co-sharers therein. THE compromise was that Khuba would remain in possession of the 2/3rds portion in the family lands and the remaining l/3rd would be entered half and half between the descendants of Godha and the other descendants of Ramsukh, and further that in the event of Khuba dying issueless, the branches of Ramsukh and Godha would divide the lands half and half. A decree was passed accordingly by the Mehkamamal Sadar on the 30th May, 1904. Consequently, it was prayed that the plaintiffs' suit was barred and deserved to be dismissed. THE main issue in the case was whether the plaintiffs were bound by the decision of the Mehkamamal Sadar Alwar dated the 30th May, 1904. THE trial court dismissed the suit by its judgment dated the 29th April, 1946. THE plaintiffs then went in appeal which was disposed of by the Additional District Judge, Alwar, by his judgment dated the 29th October, 1948. A second appeal was then preferred to the High Court of the then United State of Matsya, Alwar, which was also dismissed. THE plaintiffs then filed a review application against the aforesaid judgment and decree which was eventually granted by a bench of this court and this is how the appeal has come up before me for re-hearing.

(3.) THERE is yet another angle from which one may look at the present case. Suppose Khuba bad in his life-time promised, in lieu of his receiving 2/3rds share of the family lands, his brother Rura or his first cousin Bhinya that on the former's (Khuba's) death without any issue, they would receive his estate half and half and that in the meantime they should be content with a lesser share. I have no doubt that such a promise made by Khuba would certainly be founded on good consideration, and I also see no valid reason why such an agreement should be held to be void as being against any rule of Hindu Law. The view, therefore, that commends itself to me as essentially just and fair is that where all the members of a family have by a family arrangement or settlement defined their rights with respect to their family property and divided and enjoyed it accordingly and they have also fixed upon a certain distribution of their lands in future in the interests of family peace and amity and security and such a family arrangement is not vitiated by fraud, or undue influence or any similar imposition or victimisation then such a family settlement dealing as it does with the family property in existence at the time of the settlement of the family quarrel should not and need not be struck down as bad as being in violation of the rule against the transfer of a mere spes succession's under the Transfer of Property Act or under the Hindu Law. I hold accordingly.