RAMA SANTU RANDIVE Vs. DAJI NARU RANDIVE

JUDGEMENT

(1.) The only question pressed in argument before as in this second appeal is whether the plaintiff s claim for the land in suit is barred by an award decree between his predecessor-in- interest, a widow, and the defendant claiming by a will from the last male owner. It has been contended on behalf of the defendant that the claim is so barred relying upon the principle laid down by the Privy Council in the case of Katama Natchiar v. The Rajah of Shivaganga (1863) 9 M.I.A. 539, 604 in which their Lordships ruled at page 604 that a decree fairly obtained against the widow would bind reversioners. That principle was followed by their Lordships of the Privy Council in the subsequent cases of Mussumat Bhagbutti Daee v. Chowdry Bholanath Thakoor (1875) L.R. 2 I.A. 256, 261 and , Jugol Kishore v. Maharajah Jotindro Mohun Tagore (1884) L.R. 11 I.A. 66, 73 and was extended to a daughter holding a limited estate in the case of Huvrinath Chatterji v. Mohunt Motkoor Mohun Gaswami (1893) L.R. 20 I.A. 183.

(2.) The contention was not accepted by the First Class Subordinate Judge relying upon the case of Jeram v. Veerbai (1903) 5 Bom L.R. 885 in which Batty J. declined to apply the principle either to a compromise or an award decree. This limitation of the principle was subsequently adopted by the Allahabad High Court in the cases of Gobind Krishna Narain v. Khunni lal (1907) I.l.R. 29 All. 487, 492 and Mahadei v. Baldev (1907) I.L.R. 30 All. 75. In a later case (Gur Nanal Prasad v. Jai Narain Lal (1912) I.L.R. 34 All. 385 it was however held that a decree fairly obtained against the widow, even though the widow did not contest the suit, would bind the reversioners. This limitation of the principle suggested by Batty J. was again rigidly laid down by a Bench of the Calcutta High Court in the case of Rajlakshmi Dasee v. Katyayanl Dasee (1910) I.L.R. 38 Cal. 639, 672, 674. On the other hand the Judges of the Madras High Court appear to have contemplated the possibility of a compromise decree against the widow binding the reversioners though, they did not act on that contemplation in the case of Bhogaraju Venkatrama Jogiraja v. Addepalli Seshya (1911) I.L.R. 35 Mad. 560, 564, 565. The only other decision examined before us which has any bearing on this point was that of Ghelabhai v. Bai Javer (1916) 14 Bom. L.R. 1142 in which a decree fairly obtained against a widow was held to be binding on reversioners although the widow had withdrawn her appeal. It seems to me that this limitation of the principle appearing in these decisions has been founded upon the necessity of determining in each case whether the decree could properly be said to have been fairly obtained against the widow as representing the whole estate including the rights of the reversioners, and upon the necessity of proceeding with special caution where the decree was a compromise or award decree on the same grounds upon which it has been held that legal necessity must definitely be proved in the case of purchases from Hindu widows and that transactions must definitely be shown to have been explained and fully understood in the case of purdah women as observed by Jenkins C.J. in Sumsuddin v. Abdul Husein (1906) I.L.R. 31 Bom. 165. 175, : 8 Bom. L.R. 252. It is not necessary for the purposes of this ease to go beyond this and consider whether this limitation has not been too rigidly laid down by the learned Judges of the Calcutta High Court in Rajlakshmi Dasee v. Katytiyani Dasee (1910) I.L.R. 38 Cal. 639 contrary to the general principle enunciated by the Privy Council.

(3.) Now it is necessary to look at the award decree to determine whether it could properly be said to have been fairly obtained against the widow as representing the whole estate including the rights of the reversioners. It there appears that the plaintiff s predecessor-in-interest, the widow Tai, was seeking to assert her claim to full ownership of the land in suit against the defendant who was setting up title by a will alleged to have been obtained from her deceased husband Joti. The result of the arbitration was that the widow Tai s claim was dismissed, but ample provision was made for her maintenance during her life by actual residence with the defendant or, in case she found that inconvenient, by enjoyment of a aparate dwelling house and a cash maintenance allowance of Rs. 36 a year. It was in the latter case decided that after her death oven that dwelling house should become the absolute property of the defendant. That award was by consent of the parties and in their actual presence made a decree of the Court. Jt seems to me that the defendant, who produced and relied upon his award decree, had not merely to produce it but, in accordance with the] principles already discussed, to prove further that it was fairly obtained against the widow as representing not only her own interests but those of the reversioners as prescribed by the Privy Council. The defendant, however, failed to prove any such thing. On the contrary the award decree is open to the obvious criticism that the widow obtained practically all that she would be likely to need during her life-time and would not appear to have paid particular attention to the interests of the reversioners. But there is, moreover, nothing in the award decree to indicate that the matter in dispute between the parties was actually contested before the arbitrator. There was in fact no such guarantee that due regard was had to the rights of the reversioners as there would have been, had the case been actively contested in regular proceedings in the civil Court. It would not, in my opinion, be right in such circumstances to accept this award decree as a decree fairly obtained against the widow as representing the whole estate and so binding on the reversionera. It was, therefore, in my opinion, correctly disregarded by the First Class Subordinate Judge, as not falling within the general principle enunciated by the Privy Council.