Sahu Madho Das And Others vs Pandit Mukand Ram And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 92 and 94 of 1950

Decision Date: 22 March 1955

Coram: Vivian Bose, B. Jagannadhadas, Bhuvneshwar P. Sinha

In this case the Supreme Court of India rendered a judgment on 22 March 1955 concerning the dispute between the petitioners, Sahu Madho Das and others, and the respondents, Pandit Mukand Ram and another. The judgment was authored by Justice Vivian Bose and the bench was comprised of Justices Vivian Bose, B. Jagannadhadas, Bhuvneshwar P. Sinha and B. Sinha. The official citation of the decision appears as 1955 AIR 481 and 1955 SCR (2) 22. The core issue before the Court related to a compromise or family arrangement, the evidentiary proof required for such an arrangement, the presumption that the parties possessed some antecedent title, the assent of a reversioner to an alienation of property, and the consequent legal effect of that assent.

The Court explained that, as a matter of law, a family arrangement may be inferred from a long and consistent course of dealings between the parties. It is well settled that a compromise or family arrangement is founded on the assumption that the parties each have some form of antecedent title, however imperfect, and that the agreement both acknowledges and defines the nature of that title. Under such an agreement each party relinquishes any claim to property other than the portion that falls to his or her share and recognises the right of the other parties, as previously asserted, to the portions allotted to them respectively. Because the parties agree that the title in question has always existed in the person receiving the property, the Court observed that no formal conveyance is required to pass title from the holder of the title to the person receiving it under the family arrangement. The assumption is that the title claimed by the recipient has always resided in that recipient with respect to the share allotted, and therefore a deed or similar instrument is unnecessary.

Nevertheless, the Court noted that the judiciary consistently favours family arrangements that promote harmony, deliver justice to all members of the family and pre-empt future disputes that could be destructive. In furtherance of that policy the Court upheld an arrangement in which one group of family members completely abandoned any claim to title or interest in all disputed properties and acknowledged that the sole and absolute title to those properties rested with a single member of the family, provided that that member had previously claimed the entire title. The other members were content to receive the properties assigned to their respective shares, either as pure gifts from the sole title-holder or, where consideration was present, as a conveyance for consideration. The legal position, as articulated by the Court, is that the compromise would expressly state that the title claimed by a person identified as A over all the disputed properties was his absolute title, that it had always existed in him, and that the arrangement would subsequently effect a transfer by A to the other members—identified as B, C and D—of specific properties such as X, Y and Z. After that transfer, B, C and D would each hold title to their respective properties derived from A’s original title.

In the present matter the Court observed that, under current law, a transfer of title ordinarily must satisfy statutory formalities, requiring either registration or the fulfilment of a twelve-year period of adverse possession. However, the arrangement in question was concluded in 1875, a time when the Transfer of Property Act was not yet in force and the law did not demand any written instrument; consequently, the provisions of the Registration Act were inapplicable. The Court therefore held that the oral agreement of 1875 was sufficient to convey title in the manner described, and that such a conveyance had indeed taken effect. The Court further explained that once a reversioner has given his assent to an alienation—whether at the moment of the transaction, as part of it, or later as a separate act—he becomes bound by that assent, even though other parties may not be similarly bound. After giving his assent the reversioner may not retract it to the detriment of others, particularly when he himself receives a benefit from the transaction. It is settled law that an alienation by a widow exceeding her powers is not absolutely void but merely voidable at the instance of the reversioners, who may be barred from exercising that right either by express ratification or by conduct that treats the alienation as valid and binding. The principle applicable here is a rule common to many branches of law, which prevents a person who, with full knowledge of his rights, has once elected to assent to a transaction that is voidable at his instance and has thereafter chosen not to exercise his right to avoid it, from later reversing that election. Having made such an election, he is bound by it. Accordingly, the Court held that the plaintiff, who is now in titulo following the opening of the succession, had unequivocally assented to the arrangement with full knowledge of the facts and had accepted the benefit flowing from it; therefore he is precluded from avoiding the arrangement. Any subsequent attempts by the plaintiff to repudiate that assent, even though the assent was given when he was not yet in titulo and even though it related to a series of gifts, cannot render the original assent ineffective. The Court cited several authorities in support of this position, including Mst. Hardei v. Bhagwan Singh (A.I.R. 1919 P.C. 27), Clifton v. Cockburn ([1834] 3 My. & K. 76), William v. William [1866] L.R. 2 Ch. 294, Bani Mewa Kuwtivar v. Rani Hutlas Kuwar [1874] L.R. I I.A. 157, Khunni Lal v. Gobind Krishna ([1911] L.R. 38 I.A. 87), Bamsumirn Prasad v. Shyam Kumar ([1922] L.R. 49 I.A. 348), Baia Modhu Sudhan Singh v. Booke ([1897] L.R. 24 I.A. 164), Bijoy Gopal v. Sm. Krishna [1906] L.R. 34 I.A. 87, Ramgouda Annagowda v. Bhauaheb ([1927] L.R. 54 I.A. 396), Dhiyan Singh v. Jugal Kishore ([1952] S.C.R. 478 at 488), and Rangaswami Gounden v. Nachiappa Gouinden ([1918] L.R. 46 I.A. 72 at 86-87). JUDGMENT:

The matters under consideration were civil appeals numbered 92 and 94 of 1950, which were taken from the judgments and decrees dated 20 March 1942 rendered by the Allahabad High Court in first appeals numbered 154 and 152 of 1934. Those first-court decisions had arisen out of judgments and decrees dated 25 August 1932 issued by the Court of First Additional Subordinate Judge and the First Additional Civil Judge of Moradabad in original suits numbered 90 and 87 of 1931 respectively. Counsel for the appellants comprised N C Chatterji, assisted by S S Shukla, while the respondent in the first appeal was represented by Gopi Nath Kunzru, assisted by B P Maheshwari. In the second appeal, respondent No 2 was represented by P C Agarwala. The judgment was pronounced on 22 March 1955 by Justice Bose.

The appeals concerned two suits that had been tried together with two other suits, although the latter were not before the court at the time of this judgment. All four suits presented the same core questions, differing only on a few subsidiary points, and the parties had consented to treat the documents and evidence as common to each case. Consequently, a single common judgment had been applied both at the trial level and on appeal. The defendants in the present appeals were the respondents. The plaintiff, identified as Mukand Ram, appeared in each suit as the reversioner of Pandit Nanak Chand, who was his maternal grandfather. The family lineage was set out as follows: Nanak Chand (deceased 23 July 1856) was survived by his wife, Mahamah Pato (deceased January 1875), and three daughters—Maha Devi, Durga Devi, and Har Devi. Upon Nanak Chand’s death, his widow succeeded to the estate; on her death the estate passed to the three daughters. Durga Devi died in 1888, Maha Devi in 1912, and Har Devi in 1919. The plaintiff’s right of reversion arose on the death of Har Devi on 10 September 1919. Before that date, several alienations of the property had occurred, which the plaintiff contested in the present suits. The suits were filed on 8 September 1931.

In Civil Appeal No 92 of 1950, the plaintiff challenged a mortgage created by Durga Devi on 3 March 1887 in favour of Sahu Bitthal Das. The mortgagee had sued on the mortgage, obtained a decree, and, in execution, purchased the mortgaged properties. The plaintiff asserted that Durga Devi possessed only a life estate and that, lacking any necessity, the mortgage and the subsequent sale did not bind the plaintiff’s reversionary interest.

In Civil Appeal No 94 of 1950, two separate alienations were at issue, both being sales. The first sale, dated 23 September 1918, was made by Pyare Lal (son of Durga Devi) to Shyam Lal, son of Mulchand (not to be confused with the Shyam Lal who was Pyare Lal’s brother). The purchaser later sold the properties to the first and second defendants on 5 March 1927; the first defendant was another Shyam Lal, son of Harbilas. The second sale was effected by the guardian of Brij Lal on behalf of the minor Brij Lal on 25 November 1919 in favour of Chheda Lal. The first and second defendants later obtained a decree and took possession of the property, pre-empting the sale after a court dispute. The plaintiff contended that at the time of the first sale Har Devi was still alive, so the reversion had not yet vested and Pyare Lal lacked authority to sell. Regarding the second sale, although the reversion had vested, the plaintiff argued that Brij Lal’s interest was more remote than his own, giving him no title, and therefore that sale was also invalid. The defendants maintained that the properties involved in these two suits, as well as in the two other suits now excluded from consideration, did not belong to Nanak Chand.

The Court described two earlier transfers that formed the basis of the present suits. The first transfer was made by Pyare Lal, the son of Durga Devi, who sold the property to his brother Shyam Lal. That brother later conveyed the same property to the first and second defendants on 5 March 1927. The first defendant was a different Shyam Lal, namely Shyam Lal, son of Harbilas. The second transfer concerned the estate of Brij Lal, who was a minor at the time; his guardian acted on his behalf and sold the property on 25 November 1919 to Chheda Lal. After a dispute in Court, the first and second defendants challenged that sale, obtained a decree and subsequently took possession of the land.

The plaintiff argued that, at the time of the first sale, Har Devi was still alive and therefore the reversionary interest had not yet vested; consequently Pyare Lal possessed no authority to sell the property. Regarding the second sale, the plaintiff contended that although the reversion had vested, Brij Lal’s interest was more remote than the plaintiff’s own interest, and thus Brij Lal had no title to transfer, rendering that sale void as well.

In contrast, the defendants maintained that the properties involved in these two suits, as well as the two other suits that were no longer before the Court, did not belong to Nanak Chand and therefore were not part of his estate. Instead, the defendants said the properties formed an exclusive part of the personal estate of Mst. Pato. According to the defendants, on 22 January 1864 Mst. Pato executed a document that she described as a deed of agreement, which, if it can be described at all, amounted to a will. The document named no other parties and purports to settle her property after her death. The defendants in Civil Appeal No. 92 of 1950 referred to this document as a will. In that instrument Pato declared that she would retain possession and occupation of the property for the duration of her life, and that after her death her three daughters would become the owners, either holding the estate jointly or dividing it into equal shares, each taking possession of her respective share and becoming the “owner” of that share.

The defendants further asserted that, before her death, Pato made another disposition of her estate in 1875, an oral arrangement that effectively cancelled the earlier will. They characterized this oral arrangement as a family settlement whereby each of the three daughters received certain parcels of land absolutely, thereby becoming the absolute owners of the portions assigned to them. Pato also allocated property to each of her four living grand-sons—Kanhaiya Lal, Mukand Ram, Banwari Lal and Sital Prasad. According to the defendants, the grand-sons likewise obtained separate and absolute estates at that time and have since been holding and dealing with the divided properties as absolute owners.

Consequently, the defendants argued that at the dates of the transfers now challenged each alienor possessed an absolute title to the property alienated, leaving the plaintiff without any title. The trial Court accepted that view, holding that although most of the properties in Mst. Pato’s possession derived from her husband Nanak Chand, the plaintiff had failed to demonstrate that the specific properties subject to his four suits formed part of Nanak Chand’s estate.

The trial court identified two questions for determination: whether a family settlement had been made and whether the doctrine of estoppel could be invoked. On both of these points the learned judge decided against the plaintiff, resulting in the dismissal of all four suits that had been filed. On appeal, the High Court set aside those findings and held that every property, including the parcels that were the subject of the suits, belonged to the estate of Nanak Chand. The High Court further observed that although a family arrangement had been claimed, it was a purely voluntary settlement executed by Pato and was not the product of any dispute. Moreover, the court held that the arrangement could not bind the plaintiff because he was not a party to it and did not claim any rights through those who were parties. The High Court also concluded that there was no estoppel applicable to the plaintiff. Consequently, the plaintiff’s claim was granted in each of the four suits. Appeals were then lodged in all four matters by the various defendants. However, Civil Appeals Nos. 91 and 93 of 1950 were dismissed for lack of prosecution, so the High Court’s decree in the two cases from which those appeals arose remains in force. The present consideration is limited to Civil Appeals Nos. 92 and 94 of 1950. In the lower courts, much of the litigation focused on ascertaining which specific items out of a large mass of property formed part of Nanak Chand’s estate and which did not. The present Court does not intend to revisit that detailed inquiry, finding it unnecessary for the issue before us. Accordingly, it will assume, without making a definitive determination, that all the properties in dispute formed part of Nanak Chand’s estate, and will first address the question of the alleged family arrangement.

The counsel for the plaintiff contended that the defendants had never actually created a family arrangement, even though they used the expression “family settlement” in their pleadings. He argued that what the defendants truly pleaded was an outright gift made by Pato. It was further pointed out that the defendants never alleged any dispute, nor did they claim that anyone had ever questioned or doubted Pato’s absolute title to the property. On that basis, it was submitted that the present case, which proceeds on the assumption that the property was not Pato’s and that she was making an improper claim, cannot be sustained because it contradicts the defendants’ own pleadings. This objection, however, was of limited force. The defendants indeed pleaded that a family arrangement existed, and the matter was properly framed as an issue and contested in the proceedings. The defendants’ position was that all the property in question belonged to Pato, while the plaintiff claimed that the property formed part of Nanak Chand’s estate. The issues framed for determination were: (1) whether Mst. Pato had given the properties separately to each of her three daughters and to the daughters’ sons, placing them in proprietary possession so that they remained absolute owners, and what effect this would have on the case; and (2) whether the arrangement described in issue 1 constituted a family settlement and what effect that would have on the case. These two broad issues were deemed sufficient to cover the point in dispute. The Court therefore proceeded to examine whether the family arrangement had been proved, a question that would be addressed in the subsequent discussion.

It was observed that if the property in dispute truly belonged to Nanak Chand, as the plaintiff maintained, then the argument for a family settlement became even stronger, because the evidence showed that Mst Pato had asserted a claim over the land as her own and had therefore possessed the authority to dispose of it by will, which is exactly what the 1864 document indicated. Conversely, if the land was indeed Pato’s property, as the defendants contended, she would have possessed the legal power either to transfer it outright as a gift or to allocate it through a family arrangement, which the defendants claimed she had done. In either circumstance, the parties had fully contested the issue and there was no allegation that either side had been misled. Consequently, the court identified the real question to be whether the alleged family arrangement had been proved. The court concluded that the family arrangement had indeed been established. The primary direct evidence on this point derived from the testimony of Shyam Lal, who was recorded as the first deponent in appeal C.A. 94/50, and from the first defendant in that proceeding. Shyam Lal testified that he had conducted money-lending transactions with Har Devi, Kanhaiya Lal, Shyam Lal himself and Pyare Lal on unregistered bonds during the period from 1902 to 1910, and thereafter on registered mortgage bonds. He stated that these individuals—namely Har Devi, Mukand Ram, Kanhaiya Lal, Shyam Lal and Pyare Lal—had produced a copy of a deed of will and had declared that Mst Pato had transferred the property to her daughters and grandsons. Shyam Lal, describing himself as illiterate, recounted that Kanhaiya Lal, the brother of Mukand Ram, had read the deed of will to him at the time the property was mortgaged in 1909-1910, and that it was through that document that he learned that Mst Pato had made her daughters and grandsons absolute owners, and that he was aware of the specific property that had been mortgaged to him. The court noted that, although the so-called will of 1864 did not expressly mention the grandsons nor expressly grant an absolute estate to the legatees, the witness’s illiteracy required him to rely entirely on what he was told concerning the contents and meaning of the document. What needed to be tested, the court held, was the truth of Shyam Lal’s assertion that the plaintiff Mukand Ram, Kanhaiya Lal and other family members had informed him that Mst Pato had given the property to her daughters and grandsons. If the witness’s account that they made such a statement was correct, then that statement operated as an admission against Mukand Ram and shifted the burden of proof to him, because he was one of the persons who allegedly made the statement. The statements of the other individuals were relevant only insofar as they demonstrated the family’s conduct. The plaintiff, identified as P.W. 11 in appeal C.A. 91/50, admitted that Mst Pato had divided the estate, but contended that the division was merely for convenient management and that neither she nor her daughters claimed, or pretended to claim, any interest beyond a life estate. He denied the existence of any gift or family arrangement. Nonetheless, he conceded that the grandsons had also received property at the same time. The plaintiff’s explanation was that the allocation to the grandsons had been made solely for the purposes of “shradh” and pilgrimage to Gaya, and that although possession had been granted, ownership had not been transferred.

The Court considered the testimony of another family member, Pyare Lal, who had been examined as a witness (document 17) in the second appeal. Pyare Lal acknowledged that he had executed a series of sales, but he asserted that he possessed no independent will and that he had acted solely upon the instructions of Mukand Ram. The Court then turned to the year 1864, when Mst Pato executed the so-called will of that year. That document had been interpreted by the Privy Council in the case of Mast Hardei v. Bhagwan Singh (1) A.I.R. 1919 P.C. 27, where the Lords observed that “in the events which happened this document did not become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property.” Although Mukand Ram was not a party to that earlier litigation and the decision was not binding on him, the Court treated it as a judicial precedent concerning the construction of the 1864 document and expressed agreement with that interpretation. The Privy Council’s finding indicated that the document contained a declaration that the property “belongs exclusively to me without the participation of anyone else.” The Court noted that this assertion, together with Pato’s subsequent disposition of the property after her death—a disposition she could not have effected if she held only a limited interest—and the later conduct of her daughters and grandsons, amounted to admissions that she had claimed an absolute estate. Consequently, the Court reached the same conclusion as the Judicial Committee and held that Mst Pato claimed an absolute estate in 1864. The Court next examined the family’s conduct after Pato’s death and the various claims asserted by family members over time.

The Court recorded the statement of Mukand Ram given on oath (plaintiff-witness 11 in the first appeal) that, upon Pato’s death, her daughters assumed separate possession of properties located in a number of villages and towns. The list included Har Devi, Qutabpur, Amawti, Shakerpore, Lalpur, Bagh Alam, Sarai, houses and shops in Bazaar Kot, Sambhal, Durga Devi, Keshopur, Bhindi, Tatarpore, Ghosi, Half Bilalpat, Qumharwala, Bagh, Shehzadi Serai, houses and shops in Sherkhan Serai, Sambhal, Maha Devi, Guretha, Behrampur, Half Bilalpat, Mahmud Khan Serai, houses etc. in Kot, and Grove in Alam Serai. The plaintiff also acknowledged that the grandsons received certain properties, but he did not provide specific details. He merely stated that the grandsons were given possession “for purposes of performance of ‘shradh’ and pilgrimage to Gaya.” The Court then observed a long series of alienations by various family members who claimed absolute ownership of the lands. Such claims could have originated only from titles derived either from a gift by Pato or from a family settlement. The Court therefore noted that the pattern of alienations suggested the existence of a settlement, because the claims to absolute ownership could not be sustained without some source of title, either a direct gift from Pato or an agreement among the family members to allocate property shares.

It was established that the majority of the property in dispute, and according to the High Court the entirety of it, originally belonged to Nanak Chand. A portion of that property, however, had been bought by Pato after Nanak Chand’s death using income generated from the estate. Pato possessed a right to acquire such properties for herself rather than adding them to her husband’s estate, and she asserted in 1864 that she held title to the whole estate as an absolute owner. That assertion might have arisen from a mistaken understanding of Hindu law—namely, the belief that a widow acquires an absolute estate when there are no sons—or from other, unspecified reasons; nevertheless, the fact that she made the claim was clear. The subsequent conduct and declarations of the family indicate that they either acknowledged the correctness of her claim and treated the properties as gifts from her, or they entered into, and acted upon, a family settlement designed to preclude disputes by granting each party an absolute title to whatever share fell to them at the time of division. The grandsons, being minors at that juncture, were not parties to any such arrangement, and consequently the widow and her daughters could not enlarge their limited estates in a manner that would bind the grandsons, regardless of any agreement among themselves. At this stage the Court was not assessing the legal effect of whatever arrangement might have existed; rather, it was determining whether the family’s conduct gave rise to an inference that a factual arrangement had, in fact, occurred. The law recognizes that a family arrangement may be inferred from a prolonged series of dealings among the parties, as illustrated in the authorities Clifton v. Cockburn and William v. William. The present case exhibits such a series of dealings. First, there is an extensive list of alienations carried out by Har Devi from 1877 through 1918. On 17 January 1877 she mortgaged Qutabpur Amawti, stating that the property was “owned by me.” On 11 January 1878 she again mortgaged, claiming the property had “devolved on me from my mother.” On 20 March 1881 she mortgaged, asserting a right of inheritance from her father. On 7 September 1883 she sold land in Lalpur, describing her title as “right of inheritance.” On 23 August 1887 she mortgaged Qutabpur Amawti with no recital. On 15 July 1905 she acted as absolute owner together with Kanhaiya, as evidenced by exhibit BB-1. Subsequent entries on 19 November 1908, 14 November 1914, and 23 March 1915 record further dealings, the latter with an exhibit indicating a joint ownership with Mukand Ram. On 17 February 1916 she acted with Mukand Ram, as shown by exhibit N-1. On 28 March 1916 she dealt with Mukand Ram and his son, as per exhibit G.A. 94. On 22 January 1918 she transferred land in Behrampur together with Buzurg Mukand Ram and Bhukan Saran, as per exhibit DDD-1. Finally, on 23 March 1918 she acted with Mukand Ram and Pyare Lal, as shown by exhibit M 1. Throughout these transactions Har Devi at times declared herself an absolute owner by right of inheritance from her father, and at other times from her mother, yet the claim to absolute ownership remained consistent, supporting the inference of an underlying family settlement.

In this case the Court observed that Har Devi repeatedly asserted absolute ownership of land that she claimed to have inherited from her mother in the same village, and that regardless of the precise source of the claim the assertion of absolute ownership was consistent throughout. The Court referred to the authorities (1) [1834] 3 My. & K. 76 and (2) [1866] L.R. 2 Ch. 294. Such a claim could arise only from a family settlement in which the origin of the property was uncertain and the parties settled the question by bestowing, or purporting to bestow, an absolute estate on the daughters. It will also be noticed that later Har Devi allied herself with Mukand Ram, yet she continued to claim an absolute estate together with him. The background for this development was that soon after Mukand Ram attained majority a dispute arose between the mother and her sons. On 11-2-1890 the parties referred the dispute to arbitration, as shown in Exhibit RR-1 (C.A. 94). Mukand Ram attained majority in 1890 and Kanhaiya Lal in 1884. The arbitration agreement of 11-2-1890 indicates that Har Devi claimed an absolute title, whereas her sons maintained that she held only a limited interest. Nevertheless, the sons agreed to accept a decision that would declare her holder of an absolute estate over the whole of the property in dispute should the arbitrator so determine. The properties involved were Qutabpur Amawti, Shakerpore, houses, shops and other premises situated in Mohalla Kot, Sambhal. The document also records that both mother and sons agreed that all of Nanak Chand’s grandsons then living were in separate possession and were absolutely entitled to certain other properties, which they expressly excluded from the arbitration. These titles, the Court noted, could arise only from a family arrangement, because the grandsons could not have acquired an absolute estate in any other manner, nor could Har Devi. Mukand Ram, who testified as plaintiff-witness 11 (C.A. 91), stated that he and his brother Kanhaiya Lal received Shakerpore and some shops in Bazar Kot, Sambhal, as a result of the arbitration, but he did not speak about the fate of Qutabpur Amawti. Nevertheless, it is significant that Har Devi’s dealings with Qutabpur Amawti after that date were always conducted jointly with Kanhaiya Lal and Mukand Ram. This may indicate that the arbitrator awarded the estate jointly, or that the parties agreed to hold it jointly; the Court does not know which. What is certain is that the property was mortgaged jointly. The estate of Behrampur passed to Mukand Ram’s share, and in the mortgage of that property in 1918 Har Devi appeared together with Mukand Ram and Murari Lal’s son Bhukan Saran in one case, and with Pyare Lal in another. Except for those two mortgages of 1918, the conduct of Har Devi and her sons over the period from 1877 to 1916, as reflected in the deeds, is consistent only with the family arrangement alleged by the defendants. No other hypothesis would permit either the mother or the sons to claim an absolute estate. The Court then turns to Durga Devi, who died in 1888, but before her death she mortgaged Keshopur Bhindi, a property that had come into her share on 3-3-1887 as shown by the exhibit.

In this case, the Court examined the conduct of Maha Devi and her sister Har Devi in relation to the property disputes. The only direct evidence of Maha Devi’s actions was a written statement filed in O.S. 177/97, exhibited as Ex 2BI (C.A. 91). In that statement, dated 5-1-1898, she claimed to be in proprietary possession and occupation of the portion of the property that she alleged had been transferred to her by her mother under a deed of will. The circumstances surrounding that statement were recorded in the judgment of the earlier suit, exhibited as Ex GI (C.A. 91). That earlier suit had been brought by Har Devi against her sister and a transferee who asserted title through another sister, Durga Devi. Har Devi alleged that Durga Devi had mortgaged the lands of Keshopur Bhindi and Tatarpore Ghosi on 3-3-87. The mortgagee sued on his deed, obtained a decree for sale, and then, in execution of that decree, purchased the properties himself. After Durga Devi’s death in 1888, Har Devi maintained that Durga Devi possessed only a limited estate and that both she and Maha Devi were entitled to the properties by survivorship. Contrary to her sister’s position, Maha Devi asserted that each sister, or at least she herself, acquired an absolute estate in the property that fell to her, and that she had been placed in separate possession of that estate by their mother, Pato. On 16-12-10, Maha Devi mortgaged Behrampur Buzurg, claiming it was her exclusive inheritance from her mother and that no one else had any right to it; the deed is exhibited as Ex BB-1 (C.A. 93). Later, on 2-7-11, she sold Bilalpat and again claimed to be its exclusive proprietor, as shown in Ex R-1 (C.A. 93). The Court also considered two statements made by Har Devi and Maha Devi as witnesses in that earlier suit. Strong objections were raised to the admissibility of those statements because the plaintiff in the present case had not been a party to the earlier litigation. While it was unnecessary to decide whether the statements would be admissible under section 32(3) of the Evidence Act, the Court noted that they would not be used as proof of the truth of the facts they contained. Instead, the statements were deemed admissible to illustrate the conduct of the two women. The Court held that the conduct of the family members, taken together, was relevant to demonstrate the existence of the family arrangement on which the defendants relied. Given the passage of time, gaps in direct evidence must be filled by inferences, which, although ordinarily of limited corroborative value, constitute the only reasonable basis for proving an arrangement alleged to have been made in 1875. Consequently, the statements of Har Devi and Maha Devi were regarded as relevant as the recitals made by them in deeds and pleadings, even though they did not themselves establish the fact of the family arrangement.

The Court observed that the statements given by Maha Devi and Har Devi cannot be used to prove the existence of the family arrangement, because section 32(3) of the Evidence Act does not render them admissible for that purpose. Nevertheless, the Court held that the conduct described in those statements is relevant, and therefore the statements may be admitted as evidence of that conduct. The Court identified Maha Devi’s statement as Exhibit 2-Al (C.A. 91) and Har Devi’s statement as Exhibit 2-Fl (C.A. 91). Both statements recount an arrangement that was effected by Pato during her lifetime and assert that the parties entered into separate possession of the properties by reason of that arrangement. In addition, Har Devi states that the grandsons were also included in the arrangement and were allotted properties. From these statements the Court inferred the title each claimant asserted in Original Suit No. 177/97. Although the statements do not prove the truth of the claimed titles, they demonstrate that the assertions were made, and that is the extent of proof required at this stage.

Turning to the conduct of the grandsons, the Court first examined the plaintiff, Mukand Ram, and his brother Kanhaiya Lal. The plaintiff attained majority in 1890, and from that year until 1922 the Court noted a series of assertions of title that could arise only from the alleged family arrangement. The first document was the deed dated 11-2-90, Exhibit RR-1 (C.A. 94), which had already been considered in relation to Har Devi. That deed records an agreement between Mukand Ram, his brother, and Har Devi to refer their dispute to arbitration. The Court reiterated that the two brothers asserted an absolute title to the properties they possessed and recognised the absolute titles of Pyare Lal and Shyam Lal to the properties they held. The only matter they were willing to submit to arbitration concerned the properties in Har Devi’s possession, and they were prepared to accept a decision that would uphold Har Devi’s claim to an absolute estate.

Subsequent transactions by Mukand Ram and Kanhaiya Lal were then listed. On 20-11-91 a sale of Shahzadi Proprietary position was recorded as Exhibit 2-K1 (C.A. 91), with the session note stating that the property “devolved on us by right of inheritance from Pato”. On 28-7-93 a sale of Dugawatr Proprietary position appeared as Exhibit 2-El (C.A. 91), also described as “by right of inheritance”. On 2-7-96 a mortgage of Qutabpur, described as “ancestral”, was recorded as Exhibit KK-1 (C.A. Amawti 94), with a note that the property was possessed “without the participation of anybody else”. On 30-1-00 a sale of Bazar Mah, recorded as Exhibit U (C.A. 92), included a session note that the sale was “by right of inheritance” and was made “without the participation of anyone else”. On 15-7-05 a mortgage of Qutabpur, recorded as Exhibit BB-1 (C.A. 94), again noted that the transaction was “without the participation of anyone else”. Kanhaiya Lal died around this time, after which Mukand Ram continued to make transfers in his own name, listed as 19-11-08 (Ex MI, C.A. 94), 14-11-14 (Ex V, C.A. 92), 23-3-15 (Ex X, C.A. 92), 17-2-16 (Ex N-1, C.A. 94), 28-3-16 (Ex MM1, C.A. 94), 22-1-18 (Ex DDD1, C.A. 91) and 23-3-18 (Ex M1, C.A. 91). In addition to these, the Court noted further transfers made jointly with Har Devi, which had already been analysed.

He sold the Lashkarpur property on 18 February 1916, claiming ownership (exhibit PP-1, C.A. 94); conveyed houses in Sambhal on 24 April 1922 (exhibit Y, C.A. 92); and transferred the Qutabpur Amawti estate on 23 November 1922 (exhibit Q, C.A. 92). Shyam Lal mortgaged shops in Sambhal on 19 June 1897 (exhibit W-1, C.A. 94), transferred a house in Sambhal on 9 November 1907 (exhibit TT-1, C.A. 94), and alienated Bilalpat property on 17 September 1909 (exhibit UU-1, C.A. 94). Together with his brother Pyare Lal, Shyam Lal mortgaged Bilalpat and associated shops on 18 January 1906 without recital (exhibit EEE-1, C.A. 94) and transferred Bilalpat and Sabz on 21 February 1910 (exhibit AA-1, C.A. 94). Pyare Lal independently sold Bilalpat on 23 September 1918, asserting inheritance from Nanak Chand (exhibit 15, C.A. 94), and conveyed additional property on 2 January 1920 (exhibit 18, C.A. 93). Bhukban Saran, son of Maha Devi’s daughter, sold houses and other structures in Sambhal on 26 March 1918, claiming ownership (exhibit MM-1, C.A. 92), and relinquished his interest in Bilalpat on 9 January 1921 (exhibit DD-1, C.A. 93). Taken together, these documents reveal a long series of conduct by various family members concerning the disposition of ancestral lands. They show that from 1877 through 1922 each dealt with the property in his or her possession as an absolute owner, thereby establishing exclusive proprietary titles over the transferred estates. The source of title was not uniformly disclosed; some documents referred to inheritance from Pato, while others mentioned Nanak Chand, yet every entry asserted a separate, exclusive and absolute title. The only plausible way that each person could have obtained such exclusive titles was through a family arrangement in this case. Because under Hindu law the grandsons could not have acquired absolute estates before the reversion opened, and the daughters could only hold limited interests. If such an arrangement had been approved by the daughters and later accepted and acted upon by the sons after they reached majority, the claim by each to a separate and absolute title becomes understandable. The Court emphasized that the present inquiry is not concerned with the legal validity of such an arrangement, but solely with whether it existed in fact. Nevertheless, the conduct of Har Devi, Mukand Ram and Kanhaiya Lal was not always consistent; they displayed greed, insisting on retaining what they already possessed while seeking to acquire additional portions whenever possible. The series of events began in 1890 when Mukand Ram attained majority, at which point a reference was made to arbitration intended to settle the dispute with his mother Har Devi. Even that arbitration proceeding displayed inconsistency concerning the parties’ own properties, an issue that had been previously noted in the record.

The Court observed that the inconsistency concerning the parties’ own properties, which had already been mentioned, remained unresolved. It held that Mukand Ram’s later testimony, in which he claimed that the properties were acquired for shradh rites and for a pilgrimage to Gaya, could not be accepted as truthful. The Court then turned to the suit filed by Mukand Ram and Kanhaiya Lal against their aunt Maha Devi in the year 1895, recorded as S. No. 21/1895 and exhibited as Ex. 31 (C.A. 91). This litigation arose because Maha Devi had executed two sales on 19-February-1883 and 20-May-1885, and she insisted that she possessed an absolute title to the sold lands. The proceedings acquired a complicated history, and ultimately the suit was dismissed on the ground that it was barred by limitation. Subsequently, the Court noted a second suit, designated as Suit No. 177 of 1897 and exhibited as Ex. GI (C.A. 91), wherein Har Devi instituted proceedings against Maha Devi and a transferee. The purpose of that suit was to set aside an alienation effected by the late Durga Devi. Har Devi asserted that the property in question belonged to Nanak Chand and that the daughters held only limited ownership rights. Nevertheless, Maha Devi again relied on the family arrangement and claimed an absolute title in favor of all the daughters, a position documented in Ex. 2BI (C.A. 91). The Court recorded that Har Devi entered the witness box and acknowledged the existence of the arrangement, as shown in Ex. 2F-1 (C.A. 91). Although that suit naturally failed, the Court stressed that the outcome of the litigation was not material for the present examination because the plaintiff was not a party to that earlier case. The focus, instead, was on Har Devi’s conduct. In 1913, after the death of Maha Devi, Har Devi again commenced litigation, this time against persons who had acquired interests from Maha Devi. That dispute reached the Privy Council and was reported as Mst. Har Devi v. Bhagwan Singh (1). The Court noted that Har Devi was unsuccessful in that appeal as well. After the failure in the 1897 suit, Har Devi pursued another claim against the grandson of Maha Devi, identified as Bhukhan Saran, following Maha Devi’s death. The suit, indexed as O.S. 52/14 and exhibited as Ex. 78 (C.A. 94), resulted in a partial victory for Har Devi concerning certain items, while she failed regarding the remainder, as reflected in Exs. 6 and 8 (C.A. 94). The Court then turned to the question of whether the declaration of Shyam Lal, a deponent in CA 94, should be accepted when he asserted that Mukand Ram, among others, had informed him of a family arrangement under which Pato had divided all her property between her daughters and their sons. The Court observed that Mukand Ram had consistently maintained such a title for a period of thirty-one years, spanning from 1891 to 1922, despite his earlier deviations in 1890 and 1895. Specifically, Mukand Ram invoked this claim each time he sought to raise money through borrowing or to effect a sale of property, and he made a noteworthy admission while giving evidence as Plaintiff Witness 11 in C.A. 91, stating that “In the mortgage or sale of the property over which Mst. Har Devi was in possession none of her sisters or sisters’ sons joined. Similarly, in the sale or transfer of the property that came to Durga Devi, none of her sisters or other sisters’ sons joined” (1) A.I.R. 1919 P.C. 27. The Court further recorded that Mukand Ram also acknowledged the division and separate possession of the estate dating from 1876, describing it as a matter of convenience for management and attributing it to the aftermath of Pato’s death, although the Court found the surrounding evidence more persuasive of a different motive. Consequently, the Court accepted Shyam Lal’s testimony, held that the evidential burden shifted to the plaintiff, and noted the plaintiff’s explanations—namely, that the division was for managerial convenience and that the grandsons received property absolutely for shradh and pilgrimage purposes—both of which the Court found unconvincing. The Court therefore concluded that the plaintiff’s admission to Shyam Lal remained unrefuted.

The witness admitted that a division and separate possession of the property had taken place from the year 1876. He asserted that this division was made for the convenience of management and that it occurred after the death of Pato. However, after considering the extensive evidence that had been examined, the Court found it more probable that the witness merely repeated to Shyam Lal what Shyam Lal claimed to have been told. The witness had repeatedly borrowed money from Shyam Lal on each occasion, providing a clear motive for him to convey to Shyam Lal the same statements he had asserted to other parties to whom he transferred property. Consequently, the Court accepted Shyam Lal’s version as reliable. Acceptance of Shyam Lal’s testimony shifted the burden of proof to the plaintiff, who then offered two explanations. First, the plaintiff suggested that the division of the estate was undertaken solely for management convenience; this explanation failed to account for the long series of unchallenged transfers, except for the four cases involving Har Devi. Second, the plaintiff claimed that the grandsons received the property absolutely for the purpose of performing shradh and pilgrimage rites, an explanation that the Court found unsatisfactory. Deprived of a credible alternative, the Court relied on the plaintiff’s admission to Shyam Lal, together with the family’s conduct and actions, to affirm the existence of a family arrangement. The Court therefore held that, irrespective of whether the property originally belonged to Pato or to Nanak Chand, Pato asserted an absolute right over it, a right that the daughters acknowledged. In exchange for this acknowledgment, the daughters and their sons were allotted separate and absolute estates in distinct portions of the property at once. This arrangement bound the daughters because they were parties to it and received adequate consideration. As for the sons, they were minors at the relevant time and did not participate in the arrangement; no evidence indicated that guardians acted on their behalf. Accordingly, the properties received by the sons were, in relation to them, pure gifts from Pato with the consent of her daughters. Whether the properties were Pato’s exclusive holdings or derived from her husband is immaterial, because in either case the title rested with her, making her the sole individual competent to convey the property to others. If her title was absolute, the sons obtained absolute estates; if her title was limited, as that of a Hindu widow, the sons held a limited title that lasted only during her lifetime, and the daughters, having consented to the gifts and acquiring property as a result of the arrangement, could not challenge those gifts. The Court noted that the Privy Council had reached a similar conclusion in the case of Mst. Har Devi v. Bhagwan Singh. Regarding the grandsons, the mere fact that each received a separate gift from Pato while they were incapable of giving assent or dissent did not, by itself, bind them. For such a result to arise, an additional factor would be required, and the Court indicated that it would now turn to consider that additional element.

Before turning to the issue that required further analysis, the Court first set aside for brief consideration the earlier authorities of Rani Mewa Kuwar, Rani Hulas Kuwar [1874] 1 I.A. 157 166, Khunni Lal v. Gobind Krishna Narain [1911] 38 I.A. 87 102, and Ramsumran Prasad v. Shyam Kumari [1922] 19 I.A. 342 348. These decisions establish that a compromise or family arrangement is founded on the premise that the parties already possess some antecedent title, however modest, and that the agreement serves to identify and define that title. Each participant thereby relinquishes every claim to any property other than the portion that constitutes his or her share, while simultaneously recognising the rights of the other parties, as previously asserted, to the portions allotted to them respectively. Because the parties acknowledge that the title vested in the recipient was already theirs with respect to the share in question, the law does not require a formal conveyance to pass title from the holder of the antecedent title to the person receiving the property under the family settlement. Consequently, the title is presumed to have always resided in the recipient insofar as the particular share is concerned, and no conveyance is necessary (see A.I.R. 1919 P.C. 27; [1874] 1 I.A. 157 166; [1911] 38 I.A. 87 102; [1922] 19 I.A. 342 348). The Court, however, expressed the view that this principle may be extended further. It observed that the courts consistently favor family arrangements that promote familial harmony, protect the interests of all members, and avert future disputes that could be destructive. Accordingly, the Court indicated that, aside from any allegation of fraud, it would be prepared to uphold an arrangement in which one group of members entirely abandons all claims to any title or interest in the disputed properties and acknowledges that the sole and absolute title to all such properties rests with a single member of the group, provided that member has asserted and claimed the entire title. The other members would then accept the properties allotted to them as pure gifts from the sole title-holder, or as a conveyance for consideration where consideration exists. Under such circumstances, the appropriate legal position would be that the arrangement expressly declares that the title claimed by party A to all the disputed properties is A’s absolute title, an title that has always been in A’s possession. The arrangement would then effect a transfer by A to the other parties—B, C, and D—of specific properties, for example X, Y, and Z, after which B, C, and D would hold their respective titles derived from A’s original title. The Court noted that, in such a scenario, the statutory formalities governing the transfer of title would have to be observed, requiring either registration of the transfer or the establishment of adverse possession for a period of twelve years. Nevertheless, the Court pointed out that the present dispute concerned an oral arrangement made in 1875, a time before the Transfer of Property Act came into force and before any written instrument was required, and consequently the Registration Act was not applicable. The Court therefore concluded that the 1875 oral settlement was sufficient to effect the transfer of title in the manner described.

The Court observed that the Transfer of Property Act was not in force at the time of the 1875 arrangement and consequently no written instrument was required; because there was no writing, the provisions of the Registration Act were likewise inapplicable. In this circumstance, the Court held that the oral arrangement made in 1875 was sufficient to effect a transfer of title, and that, in its view, this is precisely what occurred. The Court further explained that the rules applicable to that oral settlement were limited to the parties who actually entered into the settlement and to persons who claimed title through those parties. The Court said that those rules could not be extended to the minor sons, because those sons were not parties to the settlement either personally or through guardians, and they did not claim title through Pato or through her daughters. For the minor sons, the Court noted, the property they received amounted to simple gifts, and the only assent that could be inferred from their mere acceptance was assent to that particular gift and nothing more; such assent did not extend to the gifts made to other persons.

When Mukand Ram attained majority, the Court explained that he could rely on two different theories of title. Under the first theory, he would hold a limited estate derived from Pato as a limited owner, together with the assent of the daughters to the gift made to him. Under that theory, his estate would remain limited until the reversion opened, the gift would be valid during Pato’s lifetime because she possessed the title to convey, and it would continue to be effective until the three daughters died, since they had assented to the transaction and had obtained a substantial benefit from it. Under the second theory, Mukand Ram could claim an absolute title on the basis that Pato was the absolute owner of the properties, a title that would depend upon the family arrangement. The Court held that if Mukand Ram, knowing the relevant facts, affirmed the arrangement after the fact, he would be barred from challenging it. Assuming that the properties originally belonged to Nanak Chand, the Court said that Pato would have been a limited owner under Hindu law, representing the estate; any conveyance by her, whether by gift or otherwise, would not be void but merely voidable. Such a conveyance would be effective against all parties except the reversioner, who alone could avoid it when the reversion opened. If the reversioner did not avoid the conveyance, either because the limitation period had expired, his own conduct precluded avoidance, or for any other reason, then no other person could challenge the conveyance. The Court emphasized that once a reversioner gives assent to an alienation—whether at the time of the alienation, as part of the transaction, or later as a distinct act—he is bound by that assent and cannot retract it to the detriment of others, especially when he himself has received a benefit.

In earlier authorities, the courts examined the effect of a widow’s alienation that exceeded the powers granted to her. The cases of Singh v. Rooke (1), Bijoy Gopal v. Krishna (1) and Ramgouda Annagouda v. Bhausaheb (3) were cited. In the last of these, Lord Sinha delivered the judgment of the Privy Council and, at page 402, observed that “it is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.” This principle was subsequently followed in Dhiyan Singh v. Jugal Kishore (4), although that decision was based on the doctrine of estoppel. The Court now turned to a different principle, one that does not rest on estoppel and is not confined to Hindu law. Estoppel, the Court explained, is a rule of evidence that prevents a party from asserting or proving the truth of a matter contrary to his earlier representations. In the present case the plaintiff is not barred from making any assertions. The Court assumed in the plaintiff’s favour that the deceased, Pato, possessed only a life estate and therefore examined in detail his claim that he had never assented to the family arrangement. The principle applied was therefore distinct from estoppel. It is a rule that operates in many branches of law and prohibits a person who, with full knowledge of his rights, has once elected to assent to a transaction that is otherwise voidable at his instance, and who has thereby chosen not to exercise his right to avoid that transaction, from later repudiating that election. Once such an election has been made, the person is bound by it.

Regarding Hindu law, the Court referred to the observations of Lord Dunedin in Rangaswami Gounden v. Nachiappa Gounden (5), a case involving a widow who gifted property to her nephew. Lord Dunedin held that the reversioner is not required to exercise his right to avoid until the reversion actually falls, and consequently, mere inaction before the death of the limited owner or owners does not indicate assent. However, the reversioner is not compelled to wait indefinitely; something may be done even before the time when the reversion falls, and such an act would amount to an actual election to hold the deed good. The Court noted that the Ramgouda case (1) illustrated what such an act could be, because in that case the ultimate reversioner gave his assent before he became in titulo to the widow’s alienations, one of which was a gift. The present case, the Court said, is another illustration of the same principle. After considering the reasons already set out and further examining the material, the Court held that the plaintiff, who is now in titulo because the succession has opened out, unequivocally assented to the family arrangement with full knowledge of the relevant facts and accepted the benefit flowing from it. Consequently, the plaintiff is now precluded from avoiding the arrangement, and any subsequent attempts he made to repudiate that assent when it suited his purpose cannot invalidate the assent that was given.

The Court observed that an assent once given could not be treated as ineffective merely because it was given while the donor was not yet in titulo and even though that assent related to a series of gifts. The central issue, the Court held, was whether the plaintiff had actually assented to the family arrangement. Because the plaintiff was not a party to that arrangement, the Court required a clear finding that his assent was to the arrangement itself and not to any other transaction, and that he possessed knowledge of the pertinent facts. The Court concluded that both the assent and the knowledge had indeed been established. Firstly, the Court noted an express assent recorded in 1890 whereby the plaintiff agreed to the gifts made to the other grandsons on the basis that each grandson would receive an absolute estate. Secondly, the Court considered the extensive series of dealings by Kanhaiya Lal and Mukand Ram, during which both asserted absolute titles over the property. In the testimony of Mukand Ram, recorded as P.W. 11 (C.A. 91), it was explained that Kanhaiya Lal served as the karta of the joint family to which Mukand Ram belonged; consequently, Kanhaiya Lal’s dealings with property held jointly and undividedly by himself and his brother were binding upon Mukand Ram. Thirdly, the Court referred to Mukand Ram’s representation to Shyam Lal, documented as D.W. I in C.A. 94, which left no doubt as to his awareness of the arrangement. The cumulative effect of these actions, the Court held, gave rise to a reasonable inference that Kanhaiya Lal and Mukand Ram held the property not on the basis of separate individual gifts made by a life owner with the assent of the next set of life owners, but on the basis of a single family arrangement that constituted one composite transaction, within which the various dispositions were parts of the same deal, and under which Mukand Ram himself acquired a portion of the estate, as reflected in Ramgouda v. Bhausaheb (1) and the cited authority [1927] 51 I.A. 396, 402. Accordingly, the Court was satisfied that the plaintiff’s assent was to this very arrangement, thereby concluding both cases. In regard to C. A. 94/50, the Court identified an additional direct personal estoppel against the plaintiff. The transfers under challenge were sales dated 23-9-18 and 25-11-19, effected by two grandsons—one personally and the other through a guardian. Although the dates of those transfers were later, the relevant representation for estoppel purposes was made to the first defendant, who acquired title to the properties at a subsequent time, either by purchase from the immediate transferee or by pre-emption. The precise dates were immaterial because the representation to the first defendant was made in 1910, preceding his acquisitions, and was conveyed by Kanhaiya Lal, Mukand Ram, and other family members. Having already examined the first defendant’s evidence, the Court noted that the matter would be governed by Dhiyan Singh v. Jugal Kishore (2). However, the Court stated that further elaboration was unnecessary, as another principle, in the Court’s opinion, was sufficient to dispose of the case.

In this matter, the Court observed that the two pending appeals were to be disposed of together and that the outcome applied to both cases. The Court therefore held that each of the appealed judgments was to be reversed, meaning that both appeals were granted. Accordingly, the orders issued by the High Court were set aside, and the earlier judgments of the first Court that had dismissed the plaintiff’s claims in the suits giving rise to Civil Appeals 92 and 94 of 1950 were reinstated. The Court further directed that the expenses of these proceedings, both in this Court and in the High Court, were to be borne by the plaintiff-respondent. However, the Court clarified that only one set of costs would be awarded, and that this single set would be shared equally between the two groups of appellants. Consequently, the Court concluded that the appeals were allowed. The Court’s order was accompanied by references to earlier authorities, namely (1) [1927] 54 I.A. 396, 402 and (2) 1952 S.C.R. 478.