MT MAHADEI KUNWAR Vs. PADARATH CHAUBE

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession which on account of the importance of the question of law involved in the case has been referred to a Full Bench. Rambaran was the last male owner of 7.295 acres of land which he held at the time of his death. On his death his mother Mt. Sartaji succeeded to the property as a Hindu mother and was entitled to remain in possession of the property for her lifetime and could have made a transfer of it only for legal necessity. On the 14 April 1928 she executed a deed of gift of the entire lands in favour of her daughter's son Mahabir, defendant 1. The Court below has found that Mahabir entered into possession of the property; but it appears that mutation of names was not effected in the lifetime of Mt. Sartaji. She died in October 1931 and an application for mutation of names was made by Mahabir who was the applicant, which was resisted by the present appellant Mt. Mahadei Kunwar as the objector. Mahadei Kunwar is sister of Rambaran. On the 1st February 1932 a document Ex. A was filed in the revenue Court which was signed by Mahabir and bore the thumb impression of Mt. Mahadei Kunwar. It was in the form of an application addressed to the Court, in which it was prayed that the name of the applicant Mahabir should be recorded in the revenue paper against 5.473 acres out of 7.295 acres, and that the name of the objector should be recorded against 1.822 acres. The compromise further stated that the objector would remain in possession of her property without any power of transfer during her lifetime and that after her death the applicant would be the owner in possession of that property. There was a further provision that the applicant would discharge certain debts of the deceased. The application contained the final prayer that the mutation case should be decided in accordance with the said compromise. The petition of compromise was not registered but was acted upon by the Court, which ordered mutation accordingly.

(2.) The present suit was instituted somewhat promptly on the 3 September 1932 by Mt. Mahadei Kunwar on the ground that the said compromise had been obtained by fraud and that for want of registration it was not binding upon her. The first Court decreed her suit, but on appeal the learned Judge has reversed that decree. There is a finding that she failed to prove the fraud alleged by her and there is a further finding that she had understood the compromise and that she had executed it independently and there is also a finding that inasmuch as Mahabir had undertaken to discharge certain debts of Rambaran the compromise was for consideration and was not unfair. There is however a finding that defendant 2 is not a bona fide transferee for value, as he must have come to know of the compromise, although he paid consideration for his transfer from Mahabir under a deed dated 7 May 1932. Prior to the amendment of the Transfer of Property Act the question of the validity of a family settlement evidenced by an unregistered document was considered by a Full Bench of this Court in Ram Gopal V/s. Tulshi Ram . In that case it was held that a family settlement could be arrived at orally without any registered document, but that if the arrangement be reduced to writing, then registration was necessary under Section 17, Registration Act, although the transaction did not amount to a transfer of property. In this connexion the observations made by their Lordships of the Privy Council in several cases were quoted and relied upon. In Trigge V/s. Lavalle (1863) 15 Moore P.C. 271 at p. 292 it was observed that: A compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases, the consideration which each party received is the settlement of the dispute ; the real consideration is not the sacrifice of a right but the abandonment of a claim.

(3.) In Rani Mewa Kunwar V/s. Rani Hulas Kunwar (1873) 1 I.A. 157, their Lordships observed: The compromise is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.