KALLAR CHOUDHURY Vs. MTKAMOD CHOUDHARAIN

JUDGEMENT

(1.) This appeal relates to a dispute with regard to title to 2 annas 18 gandas in a tauzi numbered 14660. The plaintiffs are the appellants before this Court. The property was admittedly that of one Nainan Chaudhury who adopted the plaintiffs father, and in 1872 executed what has been described as a deed of gift granting the property first to his own widow and then, after her death, to Nainan Chaudhury. The defendants also claimed title to this property, and in the following circumstances: Subsequent to the deed of gift there was litigation between the defendants father (who incidentally was a member of the same family as Nainan Chaudhury, that is to say he descended from the same ancestor) and the plaintiffs father, and that litigation related to property other than the property in dispute in this action. The action was compromised, and by the compromise not only the property then in dispute in that action was dealt with but also the property in dispute in this action. To repeat, both parties were subject to the terms of the compromise; but this is to be noticed that when the matter came before the Court to record the compromise, the operative part of the decree pronounced related only to the property which was the subject-matter of the dispute in that action.Then in 1910 the widow of Nainan Chaudhury accelerated the interest of the plaintiffs father by executing a deed of relinquishment in his favour. Now it is in these circumstances that this action arose. I should have added that the cause of action stated in the plaint in this action was that the defendants had got their names entered in the Land Registration records. There was this further fact to be noted that the widow of Nainan Chaudhury survived until the year 1928 which was after the date on which this action was brought.

(2.) The plaintiffs in the action claimed a declaration of their title to the property and, included in that prayer, they asked the Court to hold that the defendants had no interest in the property. They claimed also a decree for what has been described as confirmation of possession. The learned Judge in the trial Court came to a conclusion, which in no way has been affected by the decision of the lower appellate Court, to the effect that from the date of relinquishment by the widow in 1910 the plaintiffs have been in possession. The learned Judge of the Court below proceeded to deal with the case on these lines: he came to the conclusion, as I have said, that the plaintiffs were in possession and then came to consider the question of the title of the defendants. In so doing, one of the matters with which he dealt was the question of whether he was entitled to take into consideration matters which had arisen after the date upon which the suit was brought, holding that he was so entitled. He recognized the fact that the widow of Nainan Chaudhury had died and that by her death the defendants were entitled to possession of the property having a title thereto, and in those circumstances he dismissed the plaintiffs suit.

(3.) In my judgment the question of whether the death of the widow can be taken into consideration in this case does not arise. The short question to be determined is, in my opinion, what was the effect of the compromise entered into by the members of the family by which the 2 annas 16 gandas was disposed of in the manner in which I have stated. The argument addressed to us by Mr. Deon behalf of the defendants is that the compromise was by way of being a family arrangement, and by that family arrangement the defendants title to the property was declared. That argument is based in my judgment on the assumption that in every case of a family arrangement title to the property, the subject-matter of the arrangement, does not pass to persons who are parties to that arrangement but that their title is merely recognized; and this assumes that each party to this family arrangement has some sort of title to the property, or what has been described in one of the authorities as fighting title to the property. It is true that in Clause (2), of the compromise petition it is stated that there was a dispute with regard to the 3 annas 6 gandas 2 kauris odd of the property of Nainan Chaudhury; but I have no doubt in my mind that in the circumstances of the case at the date of the compromise the title to the property in dispute in this action which is 2 annas 18 gandas of the 3 annas odd was undoubtedly in the plaintiffs father. In those circumstances it is impossible to hold that this compromise can be looked upon as not giving the defendants title but merely declaring their title. If the defendants title is based on the compromise for the reasons which presently appear they would be met with the objection that the compromise is not registered.