HAR NARAINI KUNWAR Vs. SAJJAN PAL SINGH

JUDGEMENT

(1.) In order to explain the reasons why their Lordships think that this appeal should succeed, the barest statement of the relevant facts will be sufficient. One Jiwa Ram made his will dated 20 August 1890, by which after stating that being a member of a divided family he was the owner of the divided property specified below, he provided that (in the events which happened) his wife Hans Kunwar should "remain the owner in possession of the entire property left by me like a Hindu widow till her lifetime," and after her death all the married and unmarried daughters who be alive or whose male issue be alive shall get the estate acquired, i. e., the property in equal shares.

(2.) At the end of the will were specified four items of property of which the first was described as ''ancestral property in mauza Isauli, pargana Jalisar district Etah-4 biswas out of 20 biswas." The other three items were non-ancestral property which had been acquired by the testator. The testator, who never had a son, died on 26 or 27 August, 1890. He was survived by his wife and two daughters, viz., a married daughter Kawal Kunwar and the plaintiff who was then aged three. A third daughter (Het Kunwar) was born posthumously, who died at about the age of seven years. The will has been construed as containing no disposition, in the events which happened, of the ancestral property in mauza Isauli after the death of the widow. It would accordingly (the testator being divided and having no son) in the normal course belong to the daughter or daughters living at the death of the widow. Shortly after the death of the testator disputes arose. Certain collaterals claimed the ancestral property, alleging that they were joint with the testator. One Nem Kunwar claimed that her son Narain had been adopted by the testator, and that the testator had made a later will leaving the whole property to him. On 27 February 1891, an agreement was entered into between the various claimants of the one part, and the widow and the testator's married daughter of the other part, by which it was agreed to refer the disputes to arbitration. The material recital states: There is a dispute between us the parties in respect of the property specified below.....and it is not settled, hence for its decision we the parties unanimously have accepted to abide by the decision of the arbitrators regarding the disputes.

(3.) The specified property consisted of the four items specified by the will. By their award the arbitrators decided that as to the ancestral property in mauza Isauli the widow should remain in possession and occupation during her life, and that after her death it should be divided among the collaterals in certain detailed shares, the testator's daughters not having any concern therewith nor any share therein. As to the acquired property the widow was to remain in possession and occupation during her lifetime, and after her death it was to go to the daughters as therein mentioned. The widow died on 12 February 1928, leaving the plaintiff as the sole survivor of the three daughters. The Isauli property was mutated in favour of the collaterals. As to the other property the plaintiff succeeded thereto and the present litigation is not in any way concerned with it. The plaintiffs instituted the present suit in the Court of the Subordinate Judge at Etah, on 11 January 1930, against the collaterals, claiming that under Hindu law she alone became entitled to succeed to the property in Isauli on the death of the widow, and that the agreement to refer and the award were not binding on her for a number of reasons specified in the plaint. The Subordinate Judge decreed the suit. On appeal to the High Court of Judicature at Allahabad the decree of the Subordinate Judge was set aside and the suit was dismissed with costs in both Courts. From that order the plaintiff has now appealed to His Majesty in Council and a number of points have been argued before the Board. It is however unnecessary to express an opinion upon any except one, which in their Lordships' opinion is covered by authority of this Board, and is decisive of this case. It was contended, and this was the foundation of the High Court's judgment, that a Hindu widow represents her husband's estate, and can compromise claims so as to bind reversioners. That this is true as regards such matters as claims by creditors who are claiming to be paid out of an estate, but are not disputing the title of those beneficially interested in the estate, is beyond doubt; but whether the principle necessarily applies when the claim is one which disputes such title, is another question. But it need not be investigated in the present case for the simple and sufficient reason that in making the agreement to refer, the widow in no way purported to bind the estate, or to act as representing the estate of her husband. The agreement is clear upon the point. She and her married daughter executed the agreement as the second party, and the widow is expressly described as doing so in a double capacity viz. "in her right and as mother and natural guardian of minor daughters Mt. Hamaraini"-i. e. the plaintiff- "and Het Kunwar." She was, as guardian, contracting on behalf of her infant children.