LAWS(PVC)-1912-2-89

BALAKDHAR DUBE Vs. RAMANAND SHUKUL

Decided On February 21, 1912
BALAKDHAR DUBE Appellant
V/S
RAMANAND SHUKUL Respondents

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs claimed to have a declaration that Bisheshar Dhar Dube was separate at the time of his death from his family and that a certain decree, dated the 26th of March 1901, was void against him. A pedigree of the family will be found at the foot of the plaint. It there appears that Jagar Nath Dhar Dube had three sons, Rajpat Dhar Dube, Bisheshar Dhar Dube and Balak Dhar Dube. Bisheshar Dhar Dube died in the year 1888, leaving three wives Musammat Dilbansi, Musammat Chattarpali and Musammat Durpati, Musammat Dilbansi had a daughter, Musammat Surajkali, who was the mother of the plaintiffs respondents.

(2.) In the year 1900, a suit was instituted by Balak Dhar Dube and Manorath Dhar Dube, the son of Rajpat Dhar Dube, against the widows of Bisheshar Dhar Dube and the daughter of Musammat Dilbansi (the third widow) for a declaration that Bisheshar Dhar Dube died joint with his brothers, and that the estate was joint family property and passed upon his death to the plaintiffs in that suit, the surviving members of the joint Hindu family. That suit was submitted toarbitration, and the arbitrator who was the spiritual adviser of the family made an award. He found that the family was joint. He then proceeded to award five of the villages to Musammat Chattarpali absolutely, giving her complete power of alienation including a right to make a dedication of the whole or any part of it. The remaining portion of the property in dispute was to remain in the possession of Musammat Chattarpali and Musammat Durpati during their lives, and upon their death it was to go to the plaintiffs or their successors. The only patty that was left completely out in the cold was Musammat Surajkali, the mother of the plaintiffs. It is hardly necessary to point out that the subsequent part of the award is altogether inconsistent with the first part. If the property was joint, the plaintiffs in the litigation were entitled absolutely to all the property subject merely to the widow s right of maintenance. It will further be noticed that Musammat Chattarpali took the five villages not as widow, in which case after her death they would descend to Musammat Surajkali and Chattarpali s daughters if alive and after them to their sons and their issue and then to the plaintiffs and their issue. She was given the five villages absolutely for her own use with full power of alienation.

(3.) Amongst the defences to the present suit was the defence that the plaintiffs had no right to sue because in the litigation of 1900 the widows in possession were made parties, and it is said that they must be taken to have fully represented the estate of Bisheshar Dhar Dube and that accordingly the decree which was made in pursuance of it is binding on the plaintiffs in the present suit. It cannot be disputed that a decree fairly obtained against a widow in possession of her husband s estate after a proper contest is binding upon the reversioners. This has been decided in numerous cases not only in this Court but also by their Lordships of the Privy Council. But the question is whether Musammat Chattarpali can fairly be said to have represented the estate of her husband as distinguished from her own interest in the litigation to which I have referred. In my opinion, she did not properly represent her husband s estate. Under the award, she took against the interest of the estate an absolute interest in a very large portion of the property in dispute. I think that all the circumstances show that she was looking after her own interests and not those of the estate. The very moment that she came to know, or had any suspicion, that the arbitrator was going to make these villages over to her, she ceased to have the interest which she ought to have had of putting every thing forward to defeat the allegation made by the then plaintiffs, that Bisheshar Dhar Dube died a member of a joint and undivided family. I do not hold that a decree given in pursuance of an award would not bind the reversioners just as much as a decree in a suit in which there had been no submission to arbitration. A decree following an award where arbitration has baen regularly and properly held and where the case has been properly fought out, ought to be just as efficacious as a decree where there is no submission. I think also that it is unnecessary in this case to decide that a fair and reasonable compromise entered into by a widow not merely on her own behalf and for her own, interest, but entered into by her bona fide for the benefit of the estate which she represents, would not be binding on the reversioners. That question does not arise in the present case, In this case, it looks very much like as if the award of the arbitrator was really a compromise but the compromise was not a compromise by which the estate of Bisheshar Dhar Dube gained anything whatever. The compromise was chiefly in favourof Musammat Chattarpali but not in her capacity of a widow representing the estate of her husband, In my opinion, in the circumstances of the present case, the widow cannot be said to have fairly-represented the estate, and, therefore, the proceedings of 1900, to which the plaintiffs were no parties, are not binding upon them.