MT DASODIA Vs. GAYA PDMINOR THROUGH SADHO RAM

JUDGEMENT

(1.) This is a plaintiff's second appeal. The plaintiff appellant is Mt. Daaodia and the defendant-respondent is Gaya Prasad, the minor son of Sadho Ram. The suit was for recovery of property which had belonged to a man named Bal Govind, who died in 1920. At his death he left a widow, by name Mt. Sundaria, and three daughters, Mt. Dasodia--the appellant before us--Mt. Rukmania and Mt. Baj Kumari. Mt. Rukmania was married to Sadho Ram, father of the respondent. She predeceased her mother, who died in 1932. Mt. Raj Kumari died in 1934 without issue. The appellant is married to a man named Ram Kirpal and they have two sons. After the death of Mt. Sundaria the property passed to her two remaining daughters, namely the appellant and Mt. Raj Kumari, in equal shares with a right of survivorship inter se, and on the death of Mt. Raj Kumari the appellant would have succeeded to her share and would thus have had a life interest in the whole estate; but 17 or 18 days after the death of Mt. Sundaria an "arrangement" was concluded between the appellant and her sister and the respondent -- under the guardianship of his father --whereby Mt. Raj Kumari retained one-third only of the property, one third was given immediately to the two sons of the appellant and the remaining third was given to the respondent. On 7 May 1937 the appellant raised this action to recover possession of the property in the hands of the respondent, and the suit was resisted on the basis of the above mentioned family arrangement. The trial Court and the lower appellate Court both upheld the validity of the family arrangement and dismissed the suit. A second appeal was then preferred to this Court, which came before Braund J. That learned Judge has referred a question of law for the consideration of a Full Bench. In his referring order ho mentions a concession made before him to the effect that the respondent had no beneficial interest in the property at the time of the arrangement and also a finding that no dispute existed between the parties after the death of Mt. Sundaria, and he then says: The question that has arisen, therefore, is whether there can be a family arrangement in a case not only where there was no present dispute between the parties, but where there did not even exist any doubtful claim. Upon this matter there appears to exist a conflict of authorities in this Court.

(2.) The learned Judge then cites these authorities, and finally he has referred the following question of law to the Full Bench: Whether it is essential for the establishment of a valid family arrangement that it should be made in contemplation of (a) a doubtful claim and/or (b) an actual dispute or controversy as to a doubtful claim between the parties to the family arrangement?

(3.) At our request the learned Chief Justice has now referred the whole appeal to us, Braund J. being away on deputation. In considering the questions of law which arise out of this appeal, I shall confine myself to a discussion of those reported decisions in which the litigation was between members of the family who were parties to the arrangement, as in the case before us; I do not propose to discuss those cases in which the family arrangement was challenged by a reversioner who was no party to it, inasmuch as in the last mentioned class of cases different considerations will arise. The first case which I propose to mention is Williams v. Williams (1867) 2 Ch. A. 294, for it is mainly upon this authority that my decision will rest. In that case a man named John Williams died in 1831, leaving a widow and two sons, John, who was the elder and Samuel. The deceased left real estate of three different tenures, namely gavelkind, socage and borough English. He also left a tannery business. After his death a testamentary paper was found, whereby the deceased purported to bequeath the whole of his property, real and personal, to his two sons equally, but subject to certain provisions for his widow during her life. This documentary paper was, however, unattested and therefore invalid, and probate was accordingly refused. Thus, the deceased having died intestate, his two sons became equally entitled to the gavelkind portion of the estate, his elder son John became exclusively entitled to the socage parts and his younger son Samuel became exclusively entitled to the borough English portion--which was considerably less than the socage parts. The personal estate was divisible between the widow and the two sons in equal shares and the widow was also entitled to dower and free-bench. However, when probate of the will was refused, the elder brother declared that the invalidity of the will should make no difference between himself and his brother and that the property should belong to both of them. Thereafter, for 20 years, the property was treated and dealt with as the common property of the two brothers and they continued to carry on the tannery business on the same premises as heretofore. The widow lived with them until her death and she never asserted her legal rights in the property. This state of affairs continued until 1851, when disagreement arose between the two brothers, which led to litigation. It was held by Lord Chelmsford, L. C. and Sir G. J. Turner L. J., affirming the decree of Kindersley, V. C., that there was sufficient evidence of a family arrangement which the Court would uphold.