Richards, C.J:— This appeal arises out of a suit in which the plaintiffs claimed to have a declaration that Bisheshar Dhar Dube was separate at the time of his death from his family, and that a certain decree, dated the 26th of March, 1901, was void against him. A pedigree of the family will be found at the foot of the plaint. It there appears that Jagar Nath Dhar Dube had three sons, Rajpat Dhar Dube, Bisheshar Dhar Dube and Balakdhar Dube. Bisheshar Dhar Dube died in the year 1888, leaving three wives, Musammat Dilbansi, Musammat Chattarpali and Musammat Durpati. Musammat Dilbansi had a daughter, Musammat Surajkali, who was the mother of the plaintiffs-respondents.
(O.P 780)
2. In the year 1900, a suit was instituted by Balakdhar Dube and Manorath Dhar Dube, the son of Rajpal Dhar Dube, against the widows of Bisheshar Dhar Dube and the daughter of Musammat Dilbansi (the third widow), for a declaration that Bisheshar Dhar Dube died joint with his brothers, and that the estate was joint family property and passed upon his death to the plaintiffs in that suit, the surviving members of the joint Hindu family. That suit was submitted to arbitration, and the arbitrator, who was the spiritual adviser of the family, made an award. He found that the family was joint. He then proceeded to award five of the villages to Musammat Chattarpali, absolutely giving her complete power of alienation, including a right to make a dedication of the whole or any part of it.
3. The remaining portion of the property in dispute was to remain in the possession of Musammat Chattarpali and Musammat Durpati during their lives, and upon their death it was to go to the plaintiffs or their successors. The only party that was left completely out in the cold was Musammat Surajkali, the mother of the plaintiffs. It is hardly necessary to point out that the subsequent part of the award is altogether inconsistent with the first part. If the property was joint, the plaintiffs in the litigation were entitled absolutely to all the property subject to the widows’ right of maintenance. It will further be noticed that Musammat Chattarpali took the five villages not as widow, in which case after her death they would descend to Musammat Surajkali and Chattarpali's daughters, if alive, and after them to their sons and their issue, and then to the plaintiffs and their issue. She was given the five villages absolutely for her own use with full power of alienation.
(O.P 781)
4. Amongst the defences to the present suit was the defence that the plaintiffs had no right to sue because in the litigation of 1900 the widows in possession were made parties, and it is said that they must be taken to have fully represented the estate of Bisheshar Dhar Dube, and that accordingly the decree, which was made in pursuance of it, are binding on the plaintiffs in the present suit. It cannot be disputed that a decree fairly obtained against a widow in possession of her husband's estate after a proper contest is binding upon the reversioners. This has been decided in numerous cases not only in this court but also by their Lordships of the Privy Council. But the question is, whether Musammat Chattarpali can fairly be said to have represented the estate of her husband as distinguished from her own interest in the litigation to which I have referred. In my opinion she did not properly represent her husband's estate. Under the award she took against the interest of the estate an absolute interest in a very large portion of the property in dispute. I think that all the circumstances show that she was looking after her own interests and not those of the estate. The very moment that she came to know, or had any suspicion, that the arbitration was going to make these villages over to her, she ceased to have the interest which she ought to have had of putting everything forward to defeat the allegation made by the then plaintiffs that Bisheshar Dhar Dube died a member of a joint and undivided family. I do not hold that a decree given in pursuance of an award would not bind the reversioners just as much as a decree in a suit in which there had been no submission to arbitration. A decree following an award where the arbitration has been regularly and properly held—and where the case has been properly fought out—ought to be just as efficacious as a decree where there is no submission. I think also that it is unnecessary in this case to decide that a fair and reasonable compromise entered into by a widow not merely on her own behalf and for her own interest, but entered into by her bona fide for the benefit of the estate which she represents would not be binding on the reversioners. That question does not arise in the present case. In this case it looks very much like as if the award of the arbitrator was really a compromise, but the compromise was not a compromise by which the estate of Bisheshar Dhar Dube gained anything whatever. The compromise was chiefly in favour of Musammat Chattarpali but not in her capacity of a widow representing the estate of her husband. In my opinion, in the circumstances of the present case, the widow cannot be said to have fairly represented the estate, and therefore the proceedings of 1900, to which the plaintiffs were no parties, are not binding upon them.
5. On the other question, namely, whether or not as a matter of fact, Bisheshar Dhar Dube died a member of a joint undivided Hindu family, I am entirely in agreement with the learned Subordinate Judge. It would appear that Jagar Nath Dhar Dube, prior to his death, had the names of his sons separately recorded in respect of separate shares. This fact itself suggests the probability of separation. I think the weight of evidence is altogether in favour of separation between the brothers having taken place many years ago.
(O.P 782)
6. The only question which arises is, whether or not the plaintiffs are entitled during the lifetime of Musammat Chattarpali and Musammat Durpati and their own mother to bring the present suit. In my opinion, they are. All these persons were parties to what I must look upon as the compromise decree. None of them are now in a position to take any steps to challenge the decree or the proceedings which followed upon it. It is right and just that the plaintiffs should now be entitled to get a declaration that this decree and proceedings are not binding upon them. I would accordingly dismiss the appeal with costs.
Banerji, J.:— I have arrived at the same conclusion. As the plaintiffs were not parties to the suit in which the award in question was made and the decree following upon it was passed, they would prima facie not be bound by the award and the decree. It is, however, contended that reversioners, like the plaintiffs, are bound by the result of a litigation to which the widows, who represented the estate at the time, were parties, and that, therefore, the plaintiffs are bound by the decree which was passed in that litigation. It was never held that a decree obtained in every suit against a widow representing the estate, binds the reversioner, but their Lordships of the Privy Council held in the well-known Siva Ganga case(1), and it has been held in subsequent cases, that it is only a decree fairly and properly obtained against a widow which binds the reversioners. The law on the subject is thus summarised in Mr. J.C Ghose's Hindu Law, page 267, “A decree against a widow to bind the reversioner must have been passed after full contest, and a compromise decree, or a decree, upon an arbitration award, have no higher footing than an alienation by the widow.” We have, therefore, to see whether the decree, which the defendants contend is binding on the plaintiffs, is a decree obtained in a litigation which was fairly and properly undertaken by the widow or against her. I agree with the learned Chief Justice in holding in concurrence with the court below that the evidence fully proves that Bisheshar Dhar Dube was separate from his brothers and was at the date of his death not a member of a joint Hindu family. The evidence has been fully discussed by the learned Subordinate Judge, and it establishes that the family had ceased to be joint before the death of Bisheshar Dhar Dube. That being so, the award which proceeds on the assumption that the family was joint is wholly inconsistent with what was given to the parties who submitted their disputes to arbitration.
(O.P 783)
7. It is manifest from the nature of the interest given to the respective parties that what purports to be an award was in reality the result of a compromise between contending parties, and that the award is in fact a compromise in the guise of a decision of the arbitrator. It is thus clear that the award and the decree were not the result of a fairly and properly contested litigation in which the widows represented the estate and were seeking to safeguard the interests of the estate as distinguished from their own. This is the view taken by the learned Subordinate Judge also, and in this view he was right in holding that the award is not binding on the plaintiffs. It is true that the plaintiffs are not the next reversioners, but those who intervened between them and the estate itself are persons who are not competent to question the award and the decree, and have precluded themselves from doing so by reason of their participation in the previous litigation and in the result of that litigation. The plaintiffs only seek to have the award and decree set aside in so far as they affect their interests. The decree in this case will, therefore, have this effect that the award and the decree made in 1901, will not bind the plaintiffs and the interest which they may have in the estate of their maternal grandfather, Bisheshar Dhar Dube. I may also point out that Balak Dhar Dube alone has preferred this appeal, and that’ the other defendants, including Manorath Dhar Dube, whose interest is almost identical with that of Balakdhar Dube, have not joined in the appeal. This is a significant circumstance.
8. I agree in dismissing the appeal with costs.
9. By the Court.— The order of the Court is that the appeal is dismissed with costs.
10. Appeal dismissed