Suhrawardy, J.:— One Pran Krishna Haldar died in 1866. His widow Nithambini brought a suit in 1868 against Pran Krishna's mother Biswamoyee and his daughter by another wife Troilakhyatarini for recovery of possession of property left by Pran Krishna Haldar. The dispute between the parties was referred to arbitration, but before the arbitrator no one appeared on behalf of the defendant Biswamoyee and Troilakhyatarini. The arbitrator took the evidence offered on behalf of Nithambini and made an award. It will be useful to quote the relevant portion of the award of the arbitrator:

“It appears to me that the claim put forward by Sreemati Biswamoyee Debi in her written, statement under a verbal gift made in her favour by her son and the allegation made to the effect that five bighas of Brahammater lands in two plots in village Chetla were purchased with her Stridhan are wholly false and fraudulent. The claim as to 12 cottas of lands and palas made by Sreemati Troilakhya Tarini Devi by means of a petition dated 17th February 1868 also appears to me to be wholly baseless and false. The said petition has been filed through Sreemati Troilakhyatarini for the purpose of extinguishing the true rights of the plaintiff and putting an end to her claim. On account of the foregoing reasons I think the plaintiff's claim together with costs and mesne profits ought to be decreed, but as the plaintiff is willing to give up a portion of her claim for the purpose of maintenance and for food and raiment of her mother-in-law Sreemati Biswamoyee Devi and her step daughter Srimati Troilakhyatarini Devi I decree in favour of the plaintiff a ten annas share of the residential house at Kalighat including all its parts as well as of the other properties together with mesne profits.”

2. This award was filed in Court and the following decree was passed in accordance with it.

“Whereas the grounds of the decision in the suit which has been arrived at by the arbitrator appointed by the parties have been recorded on a paper signed by the Court, hence it is ordered that this suit be decreed. That the plaintiff do get a decree for possession of the entire Bhadrasan Bati and the lands appertaining thereto and in ten annas share of the other property with mesne profits………The costs for stamps and court-fees and entire costs of the plaintiff shall be paid by the defendant Biswamoyee and the defendants shall bear their own costs.”

3. There was subsequently a partition between the parties as a result of which the land in the suit was allotted to Biswamoyee. Biswamoyee died in 1899 and Nithambini died in 1919. We do not know as to what became of Troilakhyatarini. This suit was started in 1923 by the reversioner of Pran Krishna Haldar on ??? that the property in suit belonged to the estate of Pran Krishna and he as the reversioner was entitled to possession of it. The defendant is a lessee from Biswamoyee under a mourashi mokarari patta dated 15th December 1894. The plaintiff's case is that the result of the previous litigation in 1868 was to give a life interest to Biswamoyee to the property in suit, and that the plaintiff's right to claim possession of it accrued after the death of Nithambini. The defence, on the other hand, was that Biswamoyee had an absolute interest in the property and she was competent to make a permanent settlement of the land with the defendant. I should have felt no difficulty in deciding the question raised but for the fact that this matter came up before this Court at the instance of a defendant in another suit and it was decided against the plaintiff. The report of the case Upendra Nath Mukherjee v. Gurupada Haldar . A.I.R 1930 Cal. 508. We have been invited to consider for ourselves on the materials before us as to whether the title claimed on behalf of the plaintiff has been substantiated. Both the Courts below have decreed the suit. Both of them have found that the property belonged to Pran Krishna that Pran Krishna's mother Biswamoyee under the award and the decree in the suit of 1868 got a life interest in the six annas of the property and not an absolute interest in it and that after her death it reverted to the estate of Pran Krishna and that the plaintiff succeeded to it on the death of his widow Nithambini in 1919.

4. It will appear from the passage I have quoted from the award submitted by the arbitrator that he found that the entire property belonged to Nithambini or to the estate of Pran Krishna. He found that the claim put forward by the defendants Biswamoyee and Troilakhyatarini were false but as Nithambini willingly gave up a portion of her claim for the purpose of maintenance and for food and raiment of her mother-in-law and step-daughter he allowed ten annas only to Nithambini. The decree which followed it adopted the award as it referred to it as the paper which was signed by the Court and decreed a 10 annas share of the property then in suit in favour of Nithambini. It is argued that by the award and decree an absolute interest was created in favour of Biswamoyee and that the plaintiff as the reversioner of Pran Krishna had no right to claim it from her lessee. As I read the award and the decree it seems to me that there cannot be any meaning put upon them other than the one I have given them after anxious consideration in view of the decision of this Court on the previous occasion. The arbitrator found that the 16 annas of the property in suit were left by Pran Krishna and belonged to Nithambini. He further found that the claim put forward by the defendant was false but as the plaintiff in the suit was willing to give a portion of the claim for the purpose of maintenance and food and raiment of her mother-in-law and step-daughter he gave her a decree for 10 annas. The decree prepared in pursuance of the award is in the same terms. It does not follow that because the arbitrator gave a decree for 10 annas to Nithambini he dismissed her claim for the other six annas, after finding that Nithambini was entitled to the entire 16 annas and also that the defendant's defence was false. The only interpretation that can be put upon the award is that he would have allowed a full decree to the plaintiff in that suit bub for the fact that the plaintiff willingly gave up a portion of her claim for certain purposes to the defendants. Now the question that comes up for consideration is whether by her giving up a six annas share of the property to Biswamoyee she conveyed an absolute title to her. This cannot be asserted in the circumstances of the present case. Nithambini was not the full owner. She had a life interest in the property and that, if she conveyed her interest to any person, it must be to the extent of the interest she herself had in the property. This is so far as the award of the arbitrator is concerned.

5. It is however argued, and the argument was urged and accepted in the previous case, that by the decree Nithambini's alaim for six annas was dismissed and that it is binding on the plaintiff. I will separately deal with the question so far as the decree is concerned. I should first observe that to my mind there is no justification for saying that the decree dismissed Nithambini's claim for six annas share of the property left by Pran Krishna. The decree merely embodies the award in favour of Nithambini by passing a decree for possession of some of the lands in suit to the extent of 10 annas share. It is silent with regard to the remaining six annas. Now a decree, in order to be binding upon a person, must be proved to have the force of res judicata. In order to determine what a decree actually decides, it is necessary and sometimes it becomes incumbent to refer to the judgment on which it is based, to the issues in the suit and in some cases to the pleadings. In Kali Krishna Tagore v. Secy. of State . [1888] 16 Cal. 173, Sir Richard Couch at p. 193 of the report observed:

“The law as to estoppel by a judgment is stated in S. 6, Act 12 of 1879 and S. 13, Act 14 of 1882”

(corresponding to Section 11 of the CPC, of 1908):

“It is that the matter must have been directly and substantially in issue in the former suit, and have been heard and finally decided. In order to see what was in issue in a suit, or what has been heard and decided, the judgment must be looked at. The decree, according to the Code of Civil Procedure, is only to state the relief granted or other determination of the suit. The determination may be on various grounds, but the decree does not show on what ground, and does not afford any information as to the matters which were in issue or have been decided.”

6. After making a few observations relating to the facts of that case his Lordship made the following observation which is pertinent to the question at issue:

“The decree is only that in that suit the plaintiff is not entitled to the relief prayed for. It does not follow, as the learned Judges of the High Court think that he can never have any claim against the defendant in respect of the property.”

7. This is exactly the position in the present case. The decree does not say that Nithambini is not entitled to six annas. If it is silent with regard to any relief with respect to that share it does not follow that she could never have any claim in respect of it. The same view was expressed in Amriteswari Devi v. Secy. of State . [1897] 24 Cal. 504. The decree read with the judgment of the arbitrator which it follows makes it manifest beyond any shadow of doubt that it allowed a decree for 10 annas in favour of Nithambini not on the ground that the defendants had succeeded in establishing their title to the remaining six annas, but because the plaintiff had willingly given up that share for the maintenance of her mother-in-law and step-daughter.

8. It has been argued with great vehemence that the decree passed in the suit of 1868 was in settlement of a bona fide dispute between the parties and is therefore according to law binding on the estate which was in the hands of the Hindu widow who was a party to the decree. As I have already stated the decree did not confer any right on the defendants; and if it did, it was not passed in settlement of a bona fide dispute between the estate on the one hand and the adverse claimants on the other. It is now beyond controversy that where a decree is passed while the property is in the hands of a Hindu widow either upon contest or by way of compromise of disputed claims bona fide arrived at such a decree is binding on the estate; in Khunnilal v. Gobinda Krishna Narayan . [1911] 33 All. 356 it was held that a compromise between a limited owner and the claimant is binding upon the reversioner, but it must be such that the claimant did not derive any title from the holder of the limited interest or life-tenant, but that the compromise was based on the title of the parties existing antecedent thereto and acknowledged and defined thereby. The view that the compromise between the holder of a life-interest and a claimant, if it is in settlement of a fair dispute is binding on the estate is also expressed by the Judicial Committee in Mt. Hiran Bibi v. Mt. Soban Bibi . A.I.R 1914 P.C 44. The last case on the point that a decree fairly and properly obtained against a Hindu widow is binding on the estate is to be found in Jaggo Bai v. Utsava Lal . A.I.R 1929 P.C 166. These cases and the principle of law they establish, that a decree after contest or on compromise obtained in a suit where the rights of the parties were bona fide in dispute is binding upon the estate are not applicable to the facts of this case. I have given enough reference to the special facts of this case to show that there was no dispute between Nithambini and Biswamayee at the time when the compromse, if it can be called a compromise, was arrived at and therefore the decree was not binding on the estate or upon the reversioner. In the second place, it was not a compromise at all because Nithambini expressed her willingness to give up her claim not in recognition of a counter-claim of Biswamoyee put forward by her before the arbitrator or for any consideration whatever. The giving up of the right to present possession by Nithambini was not in settlement of any impending claim of Biswamoyee existing antecedent to the settlement; but it was undoubtedly a voluntary act prompted by considerations of regard or affection or moral obligation and partly because Biswamoyee had some claim for maintenance on Pran Krishna's estate.

9. There are certain facts which do not seem to have been fully appreciated in considering the effect of the award and the decree following it. It has been said that the decree conferred an absolute interest upon Biswamoyee but the judgment of the arbitrator on which the decree is founded mentions the fact that Nithambini was willing to give up a portion of her claim for the food and raiment of both her mother-in-law Biswamoyee and step-daughter Troilakbya Tarini. It is nobody's case that Troilakhya Tarini had any real claim on the properties then in suit. This only means that Nithambini allowed her mother-in-law and step-daughter to retain possession of the property for their maintenance during their lifetime. No word is used in the judgment of the arbitrator or in the decree which would confer an absolute transferable and heritable interest on Biswamoyee. One other fact which is also of importance is that though Nithambini's suit was decreed to the extent of 10 annas she was given a decree for the entire costs of the suit. If it was intended by the decree to dismiss her claim for 6 annas, it should not certainly have awarded her costs of the entire suit. This is a matter which gives a clear indication as to what the decree meant. It meant in accordance with the judgment on which it was based that the plaintiff had succeeded, in establishing her right to the entire estate and therefore she was entitled to the full costs of the suit and not for 10 annas thereof only.

10. The mourashi mokarari patta on which the defendant bases his claim gives sufficient indication of the device adopted by the lessor and the lessee in order to deprive Pran Krishna's estate of this property. The patta recites:

“The said son having died, his widow Nithambini Devi brought against me Civil Suit No. 1 of 1868 in the first Court of Alipore for recovery of possession of all the properties left by my husband and, stating my interest to be a 6 anaas share in all the properties of my husband, relinquished her claim thereto; and the said 6 annas share according to the decision of the arbitrator dated 25th November 1868 has been established as belonging to me.”

11. Not a word of this recital is true. The suit was not brought by Nithambini for recovery of possession of the properties belonging to the estate of Biswamoyee's husband nor did Nithambini say that Biswamoyee's share was 6 annas in the property of her (Biswamoyee's) husbands Neither did the arbitrator hold that Biswamoyee was entitled to 6 annas share in the property which belonged to her husband. It cannot be said that the lessee was not aware of the real state of things and therefore these false statements were allowed to be made by the lessor. It appears from the document itself that all the relevant papers were made over by Biswamoyee to the lessee. It is said in the deed that Biswamoyee made over the decree of the Court and the other documents to the lessee including presumably the judgment of the arbitrator and the papers relating to the suit of 1868. Then again the greater part of the document is occupied in dealing with the necessity for the lease. It is said that Biswamoyee was in debts and was hard up for maintenance and that on account of poverty she was unable to carry on religious observances. It has been found on the evidence in this case that Biswamoyee was a rich lady. She spent on works of charity no less 50 or 60 thousand rupees. The statement of legal necessity was introduced into the patta as a shield against any defect which might arise if it was held that Biswamoyee had only a life-interest in the property. As has been remarked by the Court below the very fact that legal necessity has been shown is a tacit admission that the lessor had only a limited interest in the property. It is also remarkable that the rent reserved was Re. 1 only for half a cotta of land in one of the most populous parts of municipal Calcutta. The foundation of the defendant's title is thus insecure and based on bad faith.

12. Now I come to the decision of this Court in Upendra Nath Mukherji v. Gurupada Haldar. With very great respect for the learned Judges who decided the case I am of opinion that the decision is based upon misconception of facts. The learned Judges have given several reasons in support of their decision and I propose to deal with them in the order in which they are mentioned in the judgment. The first ground is that in the decree Nithambini got a 10 annas in her suit and with regard to the 6 annas it was dismissed. This is not true, as I have tried to point out, on the decree and the award and other relevant documents read together. That being so, the principle of law their Lordships have applied in that case, namely, the principle as enunciated in Katama Natchiar v. Raja of Shivaganga . [1862] 9 M.I.A 539 P.C. and the subsequent cases following it does not really apply. The next reason given is that Nithambini gave up her interest in the 6 annas property because Biswamoyee was entitled to maintenance out of her husband's estate. In the first place Biswamoyee was not claiming maintenance in the suit. In the second place, if that was so, there is the greater reason for holding that it was a maintenance grant for life. It is clear from the judgment of the arbitrator that she claimed some of the properties in suit on an oral gift from her son Pran Krishna and soma other properties as acquired out of her stridhan. She never set up any claim for maintenance from her son's estate. Then it was observed:

“If the construction contended for by him (the reversioner) of the award were correct that it was only a maintenance grant which terminated at the and of Biswamoyee's life, then the decree was not in accordance with the award. But the decree was never set right by proper procedure.”

13. The decree in my judgment follows the award and mentions it and has said nothing against the award. It has mentioned nothing as to suggest that it was not based on it. It gave the only relief which was given to Nithambini in that suit by the award. I have attempted to show that the decree as it stands does not confer any right on Biswamoyee which was not in the judgment and therefore it was not necessary to set it right. Their Lordships next observed:

“The reason assigned was no doubt the right of maintenance of Biswamoyee. Biswamoyee was resisting her possession to the whole property. Under such circumstances if Nishambini relinquished as a matter of compromise 6 annas of the property in order to get possession of the 10 annas, that would be a compromise of a disputed litigation and according to the authority of their Lordships of the Judicial Committee that compromise was binding on the reversioners.”

14. I need hardly say that according to the facts I have stated above Biswamoyee was not resisting her possession to the whole of the property as it is shown by her absence at the time of the hearing of the matter before the arbitrator; and Nithambini further did not relinquish 6 annas as a matter of compromise because the other party to the compromise was not even present when she gave up the share. It was not a compromise in a disputed litigation as at the hearing the defendants in that suit, Biswamoyee and Troilakhaya Tarini, did not appear to contest it. Nithambini did not moreover give up the 6 annas “in order to get possession of the 10 annas” for she would have, under the award, got the entire 16 annas without giving up any portion of it. All the circumstances indicate that the act of Nithambini in not claiming possession of 6 annas of the property and allowing it to remain in possession of Biswamoyee and Troilakbya Tarini for their maintenance did not affect the right of the reversioner and the principle of law referred to by the learned Judge does not apply.

15. This matter comes before us in second appeal. We have to decide it on the findings arrived at by the Courts below and we take it that the question of law must be based on the findings of fact arrived at by them. The decision in Upendra Nath Mukherjee's case is therefore not binding on us either as a decision on the same point that we have been called upon to consider or as a precedent. No other point has been argued before us.

16. In my judgment the view taken by the Courts below is correct on the facts as well as on the law. This appeal should therefore be dismissed with costs.

Costello, J.:— I am of the same opinion. This case was argued before us at considerable length. When the matter is closely examined the real point in the case in my view lies within a very small compass. The only question we have to consider and determine is what was the real effect of the proceeding in the suit between Biswamoyee and Nithambini in the year 1868. My learned brother has referred to a decision of this Court in which one construction was put upon those proceedings which had the result of establishing that Biswamoyee has such right to 6 annas in the property as enabled her to give a good title when she proceeded to lease out the property to the predecessor of the present defendant and other persons. It is a matter of much regret that we should find ourselves in a position of having to differ from the view taken by the learned Judges in the case to which my learned brother has referred. It seems probable that the learned Judges came to that conclusion upon a misconception of the facts and events in connexion with the arbitration and the making of the decree in the 1868 suit. There is no doubt in my opinion as to what the law is with regard to suits which are brought against Hindu widows in respect of their husbands' estates. The widow undoubtedly represents the whole estate in any legal proceeding thereto and in these circumstances if a suit is brought against the widow and judgment is given against her in respect of the estate which she holds qua widow that judgment has the effect of binding the reversioners.

17. In the same way if a compromise is entered into by the widow which is for the benefit of the estate and not for her personal benefit that compromise binds the reversioner just as much as a decree in a suit which has been contested till the end. That is, I think, clear law. But it has no real application in the circumstances of this case because it is to be observed in the first instance that the 1868 suit was brought not against the widow as such but against a lady who happened to be the mother-in-law of the plaintiff and was found to be in possession of the estate which had belonged to the plaintiff's husband. The suit was, in fact, brought by the widow and upon the basis that the estate was the estate of her late husband. The learned advocate for the appellant invites us to take the view that the effect of the decree in that case ought to be taken to be the time as if in fact the decree had been made against the widow's estate so far as 6 annas share is concerned. As my learned brother has pointed out in construing the effect of a decree in this class of cases the Court is not only entitled but is required to take into consideration the pleadings in the suit and the findings in the judgment. In the 1868 suit the defendants to all intents and purposes were setting up the claim that they were entitled to retain the estate on two grounds, first, that it belonged to Biswamoyee as it had been given to her by her husband and secondly that some, at any rate, of the properties had been purchased by her with her own money. When the matter was referred to arbitration the arbitrator found against the defendants on both these points and he distinctly came to the conclusion that the whole of the estate had in fact belonged to Pran Krishna, the husband of the plaintiff.

18. It seems to follow from that the defendant had no legal right whatever to any part of the estate. The arbitrator came to the conclusion that the plaintiff was on the facts and on the law entitled to recover the whole 16 annas of the estate which she was claiming. As my learned brother has pointed out it seems to me to be obvious that when one takes into consideration the pleadings in the 1868 suit and the terms of the award which for all practical purposes was the judgment in the suit that anything which the defendants in fact obtained as a result of the proceeding was nothing more than an ex gratia allowance made to her by the plaintiff after the arbitrator had held that the plaintiff was entitled to the whole of the estate. In these circumstances it is perfectly clear that the real position was that the plaintiff was willing to forgo 6/16th share of the estate for the period of the lifetime of her mother-in-law and the other defendant who was the daughter of her husband by another wife. Biswamoyee therefore acquired no legal right to the 6 annas share at all. On that aspect of the matter it necessarily follows that Biswamoyee had no right to dispose of this 6 annas share or any part of it for any period longer than her own lifetime. Looking at the award and the form of the decree in the 1868 suit it cannot be said as the learned advocate for the appellant wishes us to hold, that there was in any sense whatever a compromise of the suit whereby the defendants acquired 6 annas share still less can it he said that the matter was fought to an issue and there was a decree in favour of the defendant in respect of this 6 annas share. It is obvious from the terms of the award that although Biswamoyee and her co-defendant had set up the defence to which I have already referred, as a matter of fact when the matter proceeded to trial they took no part in the proceeding. Anything which was done in the course of the arbitration proceeding was altogether ex parte. I agree with what my learned brother has said and the reasons which he has given why we rind ourselves unable to agree with the decision in Upendra Nath Mukherji v. Gurupada Haldar. I agree therefore that this appeal must be dismissed with costs.

B.V/R.K

19. Appeal dismissed.