CHUNNU LAL Vs. SWAMI PRASAD

JUDGEMENT

(1.) The appellants were plaintiffs in the Court below. The suit which they instituted was for the recovery of certain zamindari shares, shops, houses and trees which were at one time admittedly, for the most part, the property of one Ajudhia Prasad. They claimed this property as Ajudhia Prasad's reversioners. We may mention that it was alleged that a few of the properties had not belonged, to Ajudhia Prasad and there was some controversy upon this point in the Court below but these questions have not been seriously argued before us and in the view of the case which we take, it is unnecessary to go into them. Of the plaintiffs appellants 8 are the sons and grandsons of Faqire, Jagannath and Bankey who were the nephews of Ajudhia Prasad. The 9 plaintiff is a, transferee of part of the property from some of the other plaintiffs. It is admitted that the right of the plaintiffs to claim possession could not have arisen before the death of Mt. Lalta. Bai Ajudhia Prasad's daughter, and that at. that time Faqire was alive and Jagannath and Bankey were dead. It is therefore evident that it is only the heirs of Faqire who can have any right to the property even if the allegations made by the plaintiffs are true. At the death of Mt. Lalta Bai Faqire was the nearest reversioner and the other plaintiffs were remote reversioners who could have no claim to possession. If Faqire's heirs can be said to have established a right to the property, it is no concern of ours that they should have allowed the other plaintiffs to join with them in claiming the property. But if Faqire's heirs cannot succeed, the suit must be dismissed in its entirety.

(2.) Ajudhia Prasad had a daughter Mt. Lalta Bai, as we have already mentioned, and he also had a son Kallu who died before him. When Ajudhia Prasad died in the year 1890, Mt. Lalta Bai was alive and there were also alive Ajudhia Prasad's widow, Mt. Sai and Kallu's two widows Mt. Saloni and Mt. Ladli. Mt. Sai died sometime after her husband. Some of the property was already entered in the revenue register as being in the possession of some of these ladies, but whether they were entitled to it in their own right is, as we have already said, a question into which we do not propose to enter. It is sufficient to say for the purposes of this appeal that after Ajudhia Prasad's death the property in suit was entered in the register as in the possession of Mt. Lalta Bai and Mt. Saloni, between them. Ml. Ladli had also died soon after Ajudhia Prasad. Mt. Saloni in the year 1890 made gifts by two deeds of some of the property to Tantia, Prasad. This man was the husband of Mt. Lalta Bai's only daughter Mt Gaura. Swami Prasad was their son. He lived with Mt. Saloni and Mt. Lalta Bai and in the year 1909, these ladies set up a claim that Mt. Saloni was entitled to adpot him as a son to her deceased husband and there was, as a result an arrangement between them and Tantia Prasad and Faqire about the distribution of the property. This arrangement is evidenced by four documents. The first is an agreement to refer the disputes to arbitration the second is the award of the arbitrators, the third is an agreement accepting the award and the fourth is a declaration by Mt. Saloni that she has adopted Swami Prasad. The effect of the agreement is set forth in the award. It is that Faqire shall get 1/3 of the property on the death either of Mt. Saloni or Mt. Lalta Bai whoever shall die first, that Mt. Saloni and Mt. Lalta Bai shall have the power to give the other 2/3rds of the property to Swami Prasad after taking him in adoption or to do with it whatever they think proper; that the movable, property and houses shall remain in the possession of Mt. Saloni, Mt. Lalta Bai and Swami Prasad and that Faqire and his heirs shall have nothing to do with it, that the shares in the villages which stand recorded in the name of Swami Prasad or Tantia Prasad shall continue to be in possession of Swami Prasad and that certain property which had been dedicated to a temple shall continue to remain in dedication. This dedication was made in the year 1892 by Mt. Lalta Bai. The four documents, that is, the agreement to refer to arbitration, the award of the arbitrators, the agreement to accept the award and the declaration of adoption, are all dated 13 May 1909, and are clearly parts of the same transaction which in effect amounted to an agreement that Faqire should obtain 1/3 of the property on the death of Mt. Saloni or Mt. Lalta Bai, whoever died first, and. that the remaining 2/3rds of the property should go to Swami Prasad on the allegation that he was the adopted son of Kallu.

(3.) Mt. Saloni died soon after this agreement was made and Faqire, according to its terms, took possession of 1/3 of the property and he and his heirs have been in possession ever since. Mt. Lalta Bai. In the year 1913, attempted to obtain possession of this 3 share, but the suit which she instituted was withdrawn by her as the result presumably of a compromise. In the year 1910, Bhagwan Das, one of the plaintiffs, the son of Bankey, instituted a suit in order to obtain a declaration that the arrangement which Faqire had made with Mt. Lalta Bai, Mt. Saloni and Tantia Prasad, was not binding upon the reversioners. He obtained a decree from this Court and that decree was affirmed by their Lordships of the Privy Council, who however made it clear that the declarations would have no effect between the defendants of that suit inter se, i.e., that they would have no effect as between Faqire and the other persons to the agreement. As in the result Faqire became the nearest reversioner on the death of Mt. Lalta Bai in the year 1918, the decision in the suit can have no effect whatsoever upon the result of the suit with which we are now dealing. A number of issues were raised, but the main issue on which the decision of the Court below dismissing the suit proceeded and the main issue which has been argued be fore us is whether the agreement entered into by Faqire on 13 May 1909 prevents his heirs from claiming 2/3rds of the property of Ajudhia Prasad, which is the property in suit.