Roe, J.:— The plaintiffs in this case are aggrieved by a decree of the Subordinate Judge of Darbhanga, dismissing their suit for a declaration that certain agreements entered into by a Hindu widow with regard to the estate to which they are reversioners, be set aside as fraudulent and collusive. The facts of the case and pleadings thereon have been clearly set forth in the judgment of the learned Subordinate Judge. On 18th July, 1895 the former holder of the estate, Brij Mohan Lal, brought a suit against the defendants Brij Bihari Lal and Gobind Lal to recover Rs. 44,893 with interest upon two mortgage bonds, dated 23rd June and 30th December, 1894. During the pendency of the suit Brij Mohan Lal died and his widow, the present defendant 1 Mt. Shyam Kumari, was substituted as plaintiff. The suit was not defended by Brij Bihari Lal and Gobind Lal, but a claim was made by the Maharajah Bahadur of Darbhanga upon a prior mortgage. The learned Subordinate Judge in decreeing the suit against the mortgagors made an order that the prior mortgage of the Maharajah should be redeemed by deposit of nearly Rs. 25,000 before the mortgaged property could be brought to sale on the mortgage of Brij Mohan Lal. The matter was taken to the Judicial Committee and in 1904 the decree made by the learned Subordinate Judge was upheld. The widow Mt. Shyam Kumari made the necessary deposit and proceeded to take steps to bring the mortgaged property to sale. Finally on 20th June, 1912, all the mortgaged properties, ten in number, were put to auction and purchased by the decree-holder Mt. Shyam Kumari herself for Rs. 65,075. At this stage the sum due under the mortgage amounted to Rs. 1,41,959, 2-6, the mortgagors Brij Bihari Lal and Gobind Lal were connexions of the late Brij Mohan Lal. They approached the widow for a lenient treatment of their case. They had put in an application for the setting aside of the sale on the ground of fraud and irregularity and had also put up a minor member of their family to bring a suit contesting the mortgage decree. The widow apparently was tired of the litigation which had been going on for eighteen years, but her main idea in compromising the matter was to spare as far as possible Brij Bihari Lal, her husband's relative. She says in her evidence, that her main reason for compromising the suit was to avoid further expenses in litigation; but this statement seems to have been put into her mouth by her own pleader. The arrangements for the settlement of the dispute were as follows:

The widow was to allow the sale to be set aside, and private purchasers, one of whom was the widow's own brother, were to purchase eight of the mortgaged properties for some Rs. 69,000. Of this Rs. 66,000 was to be paid to the widow in cash and the balance of Rs. 3,000 was to remain with Brij Bihari Lal. On receipt of the Rs. 66,000 in cash the widow was to certify full satisfaction of the decree. The two properties not sold to private parties, were to remain in possession of Brij Bihari subject to a mortgage lien to the widow to the extent of Rs. 5,000. When these negotiations came to the ears of the present plaintiffs, the reversioners to the estate, they put in a petition praying that the widow be restrained from settling the matter on these terms and asking permission to contest the judgment-debtors' application to set aside the sale. This petition was refused. The arrangements made with the widow were carried into effect. The sale was set aside and full satisfaction certified. On the following day, the reversioners put in the present suit asking for a declaration that all the defendants, that is to say, the widow, the judgment-debtors and the purchasers of the property, have in collusion and concert with one another, with a view to make wrongful gain and to deprive the plaintiffs of their reversionary rights quite improperly and without any right and lawful necessity, caused the sale of the properties mentioned to be set aside by means of collusive and fraudulent proceedings and that the plaintiffs are not bound thereby. To this plaint there was a note or postcript added, that in case the defendant first party, that is, the widow intentionally fails to take out execution of the decree on the mortgage, the plaintiffs will bring a suit for the appointment of a Receiver and get the said decree executed through the Receiver. The learned Subordinate Judge devoted his attention to two main issues in the case. Firstly, whether the parties were governed by the Mitakshara or Mithila law and secondly, whether the compromise made by the widow was fraudulent and collusive. He decided the first of these issues in favour of the plaintiffs, and it is admitted at the Bar on behalf of the respondents that he could not on the evidence have arrived at any other decision. Upon the question of fraud and collusion, he was of opinion that the plaintiffs had not made out their case. He summarises his conclusions on the evidence as follows:

“I therefore find that in compromising the case her intention was far from injuring the plaintiffs' reversionary rights in any way, but she was moved by pity towards the condition of Lala Babu and while she was so moved, she did not forget the interest of the estate which was duly protected.”

2. If we could agree with the learned Subordinate Judge that this was the logical conclusion to be drawn from the evidence, the case would of course be at an end. For my own part I entirely fail to see what benefit the reversioners got out of this arrangement. The difficulty that confronts us is that there is on the record no tangible evidence upon which we can satisfy ourselves as to the actual value of the property that had been sold in execution of the decree. There is a great deal of evidence to show that in the circumstances of the case no one was prepared to give more for it then was obtained. But this unwillingness to buy the property at a higher figure was due less to considerations of the value of the property then to considerations of the somewhat complicated legal position that would arise from the setting aside of the sale and the disposal of the properties by private treaty. It would have been easy for either side to have produced the papers of the recently completed Record of Rights as the basis for an accurate computation of the value of the property. But neither side took this step. We must assume that if it had been possible for the plaintiffs to have proved that the sale by private treaty, was at prices grossly inadequate, they would have produced these papers. On the other hand it may be equally said that if the prices paid actually represented the value of the thing sold, the defendants would have put these papers upon the record. The whole question therefore seems to me to be one of the burden of proof. That it was accepted in the Court below that the burden of proof lay upon the plaintiff is clear from the frame of the issues 6 and 8. Are the applications or setting aside the sale and also the applications dated 19th August, 1912, filed in Execution Case No. 179 of 1910, certifying satisfaction of the decree under execution and agreeing to the sale being set aside fraudulent, collusive and illegal? If not whether the order setting aside the sale will stand good? Whether the sale of the properties by defendants second party to defendants third party was fraudulent and invalid? Have the purchasers acquired a valid title to them against the reversioners?

3. In dealing with the decisions of the Judicial Commitee upon the right of a Hindu widow to compromise litigation which is in her charge as representing the estate, the Courts in Calcutta have taken two broad lines, the one based on the decision in Imrit Konwar v. Roop Narain Singh(1), the other on Katama Natchier v. Rajah of Shivagunga(2), and the broad line of decisions has been that a widow has no right to bar the succession of the reversioners to the estate as a whole but is entitled to release a part of the estate by compromise of a bona fide claim, provided that the compromise is not shown to be unfair or made solely for her own benefit to the prejudice of the interests of the reversioners. The whole case law was reviewed in the arguments in Khunni Lal v. Gobind Krishna Narain(3). The standpoint from which compromises such as the compromise before us have been attacked, has invariably been that the release of a part of the estate by the widow is in fact an alienation, and the conclusion of their Lordships was upon a review of the case law:

“That the true test to apply to a transaction which is challenged by reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life-tenant. In the present case,” they say at p. 367, of 33 All. “Khairati Lal acquired no right from the daughters of Daulat, for ‘the compromise,’ to use their Lordships' language in Rani Mewa Kuwar v. Rani Hulas Kuwar(4), ‘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.’”

4. The parties in the case before us whose purchase is challenged, derived their title not from the widow but from the owners Brij Bihari Lal and Gobind Lal. Their rights to hold it free of all encumbrances was not derived from the widow, but from the right of the mortgagor judgment-debtor to set the property free from the mortgage by a deposit of the whole decretal amount at any time prior to the confirmation of the sale. This right was established in the Calcutta High Court by the decision in Bibijan Bibi v. Sachi Bewah(5). A right to redeem is not extinguished until the sale has been actually completed and the proceeds of the sale dealt with. The learned Chief Justice at paragraph 868 quotes the views of the Courts of Madras, Bombay and Allahabad as consistent with his own.

5. The question before us therefore is whether the widow was competent to compound with the mortgagor judgment debtor upon his right to redeem by accepting in full satisfaction of her claim less then half of the amount actully due upon it. It is immaterial in my view whether we regard the subsisting mortgage decree as moveable or immovable property. If by the composition made, she was wasting it to the detriment of the reversioners her action would not be binding upon them. But I hold that the burden of proof is on the reversioners to show that this composition entailed waste of the property. A widow's power to compromise has frequently been compared with the powers of a guardian to compromise and the power of the Karta of a Mitakshara family to effect a settlement. In Baboo Lekraj Roy v. Baboo Mahtab Chand(6) it was said that the interest of infants would seriously suffer if a notion were to prevail that guardians were bound for their own security to contest all claims against an infant's estate, whether well or ill founded; and such a notion might prevail if the compromise of a claim of debt confirmed by a decree of a Court were to be set aside after sixteen years without distinct proof of fraud, and General Manager of the Raj ??? v. Maharajah Coomar Ramapot Singh at p. 615 of 14 M.I.A of the same Volume dealing with an order treating the widow as the sole representative of an estate it was said:

“From the above statement it is clear, that unless there be soma fatal irregularity in the mode in which the decree of the appellant was obtained or drawn up, or some fatal irregularity in the mode in which that decree has been prosecuted, the estates have been regularly sold, and that the suit of the respondent, seeking to set aside the order for sale must fail.”

6. These cases however do not deal directly with the power of the widow to settle disputes. The basis of all decisions upon the effect of a contested decree against a widow is to be found in Katama Natchier v. Rajah of Shivagunga:

“The same principle which has prevailed in the Courts of this Country as to tenants-in-tail representing the inheritance, would seem to apply to the case of a Hindu widow, and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.”

7. In Tarinee Churn Gangooly v. Watson & Co.(7) Markby, J., said at p. 417, Col. 2:

“It seems to us much more reasonable to hold that, as representative of the entire estate in the litigation, she has the same control with respect to compromise as she has with respect to the assertion of rights and with respect to appeal against an adverse decision. It is of course possible that the trust thus reposed in the widow may be abused without detection, as may the very large discretion which, as the law now stands, she undoubtedly possesses in other matters. But, on the whole, we think it will be found most favourable for the heirs that she should have the power of compromise at every stage of the proceedings.”

8. And in Karimuddin v. Gobind Krishna Narain(8) it was said that the preservation of the estate and the costs of litigation for that purpose, are objects which justify a widow incurring debt and alienating a sufficient amount of property to discharge it. It seems to me clear that if a widow is entitled to encumber the estate for the purpose of carrying on a litigation, she is equally entitled to avoid the expenses of litigation by compromising a bona fide claim. Mookerjee, J., in Mohendra Nath v. Shamsunnessa(9), referring apparently with approval to the decision of Markby, J., above quoted, lays down the rule that the principle in Katama Natchier's case is not limited to decrees in suits contested to the end and is subject to the qualification that the compromise was made for the benefit of the estate, and not for the personal advantage of the limited owner. Upon consideration of this point he bald that:

“the decree which has not been successfully impeached on the ground of fraud, coercion, collusion or any like reason, operates as res judicata between the parties to the present suit.”

9. I hold that in the case before us that burden of proof was on the plaintiffs to show that the compromise entered into by the widow Mt. Shyam Kumari was entered into collusively for the purpose of conferring upon herself a benefit at the expense of the estate. All that has been shown, is that instead of stripping the judgment debtors, near connexions of the family, of every item of property which they possessed, they were allowed to retain a sum of Rs. 3,000. The litigation had already lasted 18 years; there were cases pending which might prolong it for many years further. It is our common experience that though there may be nothing valid in the objections taken to an auction sale, the judgment-debtors will almost invariably carry on their objections to the sale from Court to Court merely for the purpose of holding on to the property for a few more years. The widow would no doubt have succeeded in the end, but she would have spent perhaps Rs. 3,000, perhaps Rs. 10,000 in the ensuing litigation. The compromise of the claim whereby she avoided this expense, seems to me to have been a fair and reasonable settlement. The whole facts of the case were clearly before the Court. The Court was aware from the petition of the present plaintiffs that there were reversioners to be considered. There was no fraud upon the Court. There is nothing to indicate that the widow proposes to waste the money that has gone into her hands or to give it away. If it remains in the estate, or if it remains in her hands, it will come to the reversioners in due course, and in the absence of proof that the sum obtained by the compromise was grossly inadequate, it cannot be said that it has been proved that there was a fraud on the reversioners. The relief which the reversioners might and should have applied for, was a declaration that the widow be required to pay into Court the sum received upon the compromise in order that it might be invested for their own benefit. This relief they have not asked for. Instead they seek to make the property, which purchasers have taken in good faith, free of all encumbrances on payment of Rs. 69,000 (as far as we know its full value) subject to the residue of the mortgage debt, another Rs. 75,000. In asking that this compromise be set aside, the reversioners are seeking to impose upon the purchasers of this property a loss of Rs. 75,000 to which they should not be held legally liable and a gain to themselves of Rs. 75,000 to which they are certainly not in equity entitled. The compromise made by the widow was at least a far fairer arrangement then that by which the reversioners seek to set it aside. In my view the learned Subordinate Judge was right in refusing to the reversioners the declaration which they sought. I would dismiss these appeals with costs.

10. Jwala Prasad, J.:— I agree to the order proposed by my learned brother.

V.S/R.K

11. Appeals dismissed.