JUDGMENT

O.S No. 10 of 1914.

This and the connected appeals owe their origin to C. S. No. 266 of 1886. The parties are practically the same in all the appeals. We shall therefore decree their relationship in this appeal and deal in the other appeals only with the particular questions arising for decision in them.

Tanjore Venkata Row had four sons: (1) Ramachandra Row, Lakshmana Row, Raja Ram Row and Tuljaram Row. C. S. No. 266 of 1886 was brought by Atmaram Row, son of Lakshman Rao, for partition. Ramachandra Row was a defendant in the suit. He died in 1889 and his widow was brought in as his regal representative. The other brothers of Ramchandra Row were all parties to that litigation. The preliminary decree in the suit was passed in January 1892. O. S. Appeal No. 33 of 1892 was preferred against that decree by Lakshmana Row, claiming against Tuljaram Row a larger sum than what was decreed in the Original Suit. During the pendency of the appeal the final decree was passed. This was in October 1896. Against the final decree, Tuljaram Rao preferred O. S. Appeal No. 4 of 1897, contending that the sum decreed against him was not due from him. It may be stated that although Tuljaram was the youngest of the four brothers, he seems to have been the manager of the family affairs, at least so far as the Madras properties were concerned. It may also be stated that the most valuable property in litigation is the Scottish Press in which the records of the High Court are printed and which is and has been under the direct management of Tuljaram Row. Before the appeal from the final decree was heard, a decree was passed in the appeal from the preliminary decree (O. S. Appeal No. 33 of 1892) which increased the amount payable by Tuljaram Row. This was on the 17th August 1897. At this time, negotiations for a compromise were proceeding among the members of the family. The object was to settle in the first instance the claims of Janaki Bai, the widow of Ramachandra Row, the deceased brother, and then, to come to an arrangement with Rajaram Row. Exhibit 54 is the agreement come to between Tuljaram Row and Janaki Bai. This is dated the 19th November 1897, and contains an endorsement signed by Rajaram Row in these words, “I consent. “The final arrangement is evidenced by Exhibit 74 executed on the 1st of June 1899.

Almost contemporaneously with the preliminary agreement with Ramachandra Rows' widow on the 19th November 1897, compromise was come to between Tuljaram Row and Rajaram Row on the 21st of November 1897. This is embodied in Exhibit AA. On this date Rajaram Row had one son Ganesa Row. This boy was a minor at the date of the compromise. Subsequently two sons were born to him one in 1907 and the other in 1910, As a result of the compromise (Exhibits 54 and AA) Tuljaram Row withdrew O. S. Appeal No. of 1897. Beyond reporting the compromise, no decree in terms of the compromise was asked for. The withdrawal of the appeal was followed up by Rajaram Row entering satisfaction of the decree in his favour; (Exhibit BB on the 25th of November 1897)

The first attempt to disturb these arrangements was made in 1906. In that year, C. S. No. 194 of 1906 was instituted by Ganesa Row against his uncle, Tuljaram Row and his father, Rajaram Row, for a declaration that the compromise (Exhibit AA) was wholly invalid and for the recovery of one lakh and sixty thousand rupees and odd from Tuljaram Rao, the 1st defendant, on behalf of the joint family of himself and his father. The suit was dismissed by Mr. Justice Wallis (as he then was) on the ground that the compromise was binding on the plaintiff. O.S Appeal No. 47 of 1908 was preferred against this judgment. Benson and Sankaran Nair, JJ., confirmed the decision. The matter was taken up to the Privy Rouncil on the ground that the compromise was not sanctioned by the Court and their Lordships held “There should be a declaration in this case that the agreement of the 21st November 1897 and the satisfaction entered thereunder are not binding on the plaintiff and that he is remitted to his original rights under the decrees in the suit of 1886.” This was on the 8th of April, 1913. As a result of this conclusion, the learned Judge reheard the Original Suit. The two other sons of Rajaram Row were made supplemental 3rd and 4th defendants in the suit. Against the judgment in the suit two appeals have been preferred. The appeal by the plaintiff is O.S Appeal No. 72 of 1914. The appeal by the 1st defendant is O.S Appeal No. 74 of 1914.

Before the decision of the Judicial Committee in the appeal preferred by Ganesa Raw, he and his father Rajaram Row had instituted C.S No. 275 of 1911 for a declaration that the agreement of the first of June 1889 (Exhibit 74) was not binding on them beyond the lifetime of Ramachandra Row's widow. The widow, Janaki Bai, was the 1st defendant, Tuljarama Rao was the 2nd defendant, Lakshmana Rao, the other brother, was the 3rd defendant and his son, who is now dead, was the 4th defendant. This suit was confined to the properties within the original jurisdiction of the High Court. Immediately after, O. S. No. 21 of 1912 was instituted by the same plaintiffs in Tanjore in respect of the Tanjore properties against practically the same defendants and for the same relief. Both the suits were dismissed. O.S Appeal No. 10 of 1914 is against the judgment in C.S No. 275 of 1911 and Appeal No. 201 of 1915 is against the decree in O. S. No. 21 of 1912.

Now, we shall deal with the contentions in each of the Appeals separately,

O. S. Appeal No. 10 of 1914 and Appeal No. 201 of 1915.

The question common to both the appeals is whether the endorsement of Rajaram Row does not estop him from contending that the agreement by Ramachandra Row's widow with Tuljaram Row is not valid beyond her lifetime. The separate question regarding Ganesa Row's right to impeach the compromise arises only in Appeal No. 201 of 1915. The contention of Mr. Venkatarama Sastriar on behalf of the appellants is that by signing underneath the words “I consent'’ in Exhibit 54. Rajaram Row was consenting only to the alienation of Janaki Bai's life-estate. We are wholly unable to accept this contention. Tuljaram Row undertook to pay the debts of her husband. He paid Rs. 30,000 in cash. The assets consisted partly of debts which had to be recovered. It is true that Tuljaram Row himself was indebted: but there were other debts. Under these circumstances, we see no reaons for holding that what was agreed to be conveyed was only the life-estate of the widow. If that were so, the consent of Rajaram Row would not have been material. Further, there is no evidence that the life-estate of the widow was worth the consideration which was agreed to be paid.

The authorities relied upon by the learned Vakil are not applicable to this case. In Lola Rup Narain v. Gopal Devi, the widows were on the face of the document, transferring only their life-interest in the property. The document says: “At this moment we with a view to liquidate the debts due by us which debts we thought expedient to incur in order to make such improvements to our other property as might have the effect of augmenting the income from rent and to prevent the addition of interest, have absolutely sold the property, a description of which is given hereafter, together with all its dimensions and external and internal rights.” The ladies had incurred personal debts and to discharge them, they alienated the property. The Judicial Committee pointed out “it (the alienation) does not profess to affect any title coming from Wazir.” The next case relied on is Jiwan Singh v. Misri Lal. The agent of the widow executed the document in question in this case. It was held that although the agent was also the presumptive heir, as he received no consideration for the transfer, the document should not be interpreted as conveying anything more than the life-interest of the principal. On the other hand, in Thakur Vasonji Morarji v. Musammat Chanda Bibi it was held by the Judicial Committee that the reference to the debts of the husband of the transferee is a clear indication that the full interest in the property was intended to be transferred. They also say that deeds of this nature should be construed literally. Applying these principle?, we are of opinion that Exhibits 54 and 74 were intended to convey and did convey an absolute interest in the properties.

The next branch of the argument was that the words “I consent” only mean “I know” and that they are not sufficient to indicate that there was an intelligent understanding of the nature of the document which Rajaram Row was assenting to. We think that the stringent proof which the Judicial Committee insist upon, (vide Hari Kishen Bhagat v. Kashi Pershad Singh), in such cases has been adduced in the present instance. We were taken through the correspondence which passed between the two brothers prior to and subsequent to the execution of the two documents, Exhibits 46, 48, 49, 50, 51 and 51 (a) leave no room for doubt that Rajaram Row was following the events, which led up to the execution of Exhibit 54 closely and with considerable interest. It almost looks as if he was more anxious than Tuljaram Row that a settlement should become to with the widow. So far the matter is clear. An ingenious argument was based upon the wording of Exhibit 52. The words are “I did sign below his signature. I did not go through the agreement; neither he told me the pariculars of it, as it was nearly 5-30 or 6 P.M I could not read.” The suggestion of the learned Vakil was that these words refer to Exhibit 54. There are insuperable objections to accepting this theory. Rajaram Row was here referreing to a document which was signed by the lady, at Trivadi; but Exhibit 54 was admittedly signed by Janaki Bai, at Tanjore That is the evidence of Rajaram Row, of Tuljaram Row, of Subba Row, the agent and of the lady herself. In the face of this evidence, it is too much to ask us to say that the reference in Exhibit 5 is to Exhibit 54. Again Exhibit 52 refers to a document executed on the 14th or the 15th of November 1897. Exhibit 54 was signed only on the 1th of November. The language of Exhibit 52 cannot therefore refer to Exhibit 54.

Further no attempt was made in the course of the trial to connect the words in Exhibit 52 with the signature in Exhibit 54. Not a single question was put to any of the witnesses on this subject. We think it is futile to argue that Exhibit 52 refers to Exhibit 54. There is the positive evidence of Tuljaram Row himself that the latter was aware of the contents of Exhibit 54. Rajaram Row was a man fully conversant with business affairs. There is not the faintest suggestion in the evidence that he was overreached. The correspondence, as we said before, shows that he was bent upon securing to his brother the benefits of the arrangement with the widow. We have no hesitation, that the consent was given knowingly and deliberately. Consequently he is estopped grom impeaching the transaction.

A faint attempt was made to show that the final agreement, Exhibit 74, differed in some particulars from Exhibit 54. On examining both carefully, we see no ground for acceding to this argument. The two documents in all material respects are identical. The latter is more formal.

Now we shall deal with the special arguments on behalf of the second plaintiff in Appeal No. 201 of 1915. He was no party to Exhibit 54 or 74. It is true that if he happens to be the heir at the death of the widow, the consent of his father will not bind him. Bahadur Singh v. Mohar Singh,. The question is whether he should be allowed an opportunity of showing that the alienation was not justifiable or bona fide. The learned Advocate-General who appeared for Tuljaram Row contended that the suit of the 2nd plaintiff was barred by limitation. It was conceded that if 6 years' limitation applied to him and if his cause of action arose on the execution of Exhibit 74 he would be barred by limitation. Mr. Venkatarama Sastriar contended that Article 125 applied. In Kunwar Bahadur v. Bindraban, this view was adopted. We are unable to accept this contention. In terms Article 125 applies only to plaintiffs who if the female died at the date of instituting the suit” would be entitled to the possession of the property in dispute. Ganesa Row, the 2nd plaintiff, being a remote reversioner, cannot come under this category. His father Tuljaram Row and Lakshman Row are the nearest reversioners. We think that it is the residuary Art. 120 that applies to this case, as held in Ramanna v. Annamma, Kalavathal v. Thirupathi Pallavarayan and Narayana v. Rama. Even in this view, there will be no bar of limitation. Under Art. 120, Ganesa Row will have six years from the time “when the right to sue accrues”. Remote reversioners have no cause of action to sue so long as there are nearer reversioners who have neither colluded with the widow, nor have precluded themselves from suing, Rani Anand Kunwar v. The Court of Wards. On the date of the suit in Tanjore, Tuljaram Row was out of Court by accepting the alienation and Rajaram Row by having consented to it. There was still Lakshmana Row and his right would not be barred under Art. 125 until the next day after the institution of the suit. Therefore Genesa Row had no cause of action on the date of the suit. There is one answer to the suit. We prefer to place the objection on a broader ground. Sect. 42 of the Specific Relief Act gives Courts a discretion in such matters. We think for the reasons which we shall presently enumerate, this discretion should not be exercised in favour of Ganesa Row. (1) In the first place, he would not be without remedy as we said already, if he happens to be the heir when succession opens, for his father's consent would not affect him; (2) secondly there are three lines between him and the succession. It is true all of them are somewhat older than the widow. Still, it cannot be said that the contingency of her surviving all her three brothers-in-law is very probable; (3) thirdly, so far as the Madras properties are concerned, Ganesa Row's name was struck out as plaintiffs, and he has not chosen to appeal against that order. Consequently, the declaration, if he succeeds, can only be made in respect of the Tanjore properties and not of the Madras properties, (4) fourthly, another ground is that although his right of suit might in strictness, accrue to him only alter Lakshmana Row's right had become barred, still when he found that his father could not sue, he might have ascertained from Lakshmana Row whether he was willing to contest alienation; (5) fifthly furthermore, in the suit filed by him he has not stated that his individual right should be secured to him, because his father was precluded from suing. The observations in Rani Anand Kunwar v. The Court of Wards, Meghu Rai v. Ram Khenawan Rai and Avula Guruvayya v. Avula Venkammal. seem to suggest that the remote reversioner should state as the foundation of his right the incapacity of the nearest reversioner to prosecute the claim; (6) sixthly, Genesa Row and Rajaram Row have made common cause in the suit and they have come into Court with a false case that Rajaram Row did not assent to the arrangement. For all these reasons, we are of opinion, that the discretion to allow the suit to be continued and to put in issue the bona fides of the transaction, should not be conceded in fovour of Ganesa Row when we find that his father's claim should be dismissed.

We therefore dismiss the appeals (O. S. A. No. 10 to 1914 and Appeal No. 201. of 1915) with costs.

The memorandum of objections is also dismissed with costs.

O. S. Appeal No. 74 of 1914.

After the decision of the Judicial Committee already referred to, the two sons of Rajaram Row born subsequently were added as supplemental defendants. The learned Judge found that the compromise Exhibit AA was binding on the half share of Rajaram Row, and that Ganesa Row and his two minor brothers were entitled to the other half share. The learned Judge also held that Ganesa Row was entitled to interest upon the amount added to the decree in the appeal against the final decree. He further held that Tuljaram Row was not entitled to reopen O. S. Appeal No. 4 of 1897, which was withdrawn as a result of the compromise. Tuljaram Row has preferred this appeal in so far as the Judgment of the learned Judge is against him.

The learned Advocate-General's first contention is that as on the date of the final decree in the suit, the family was undivided, and consisted of a father and three sons, Ganesa Row was only entitled to a fourth share and that the decree should be confined to that share. We agree with Mr. Justice Wallis that this contention is not well founded. What the Judicial Committee said was that the compromise was binding upon Rajaram Row's share. That share on the date of the compromise was one half because the other two sons were not born then. It was conceded that if the arrangement evidenced by Exhibit AA were regarded as an alienation, the alienee would be entitled to a half share. Chinnu Pillai v. Kalimuthu Chetti has settled that question; but it was argued that a compromise is essentially different from alienation. It is true that there is a transfer of an interest in both cases; but in judging of a compromise, Courts are concerned only with the bona fides of the settlement and not with justifiable necessity as in the case of an alienation. Khunni Lal v. Gobind Krishna Narain, Musammat Hiran Bibi v. Musammat Sohan Bibi and Pulliah Chetti v. Varadarajulu Chetti point out that a compromise should not be regarded as an alienation. In the present case, we have the judgments of this Court both in the suit itself and in the appeal that there were good grounds for the brothers coming to an amicable settlement. Tuljaram Row's appeal against the final decree imperiled the whole decree. It may be that Rajaram Row behaved generously towards his younger brother whose circumstances became straitened in consequence of the decree passed in C. S. No. 266 of 1886; but there can be no question that an honest endeavour was made to adjust all outstanding differences and to bring peace among the members of the family. We are therefore inclined to think that the compromise should not be regarded as a gratuitous transfer of an indefeasible right, but as effecting an honest settlement of disputed rights. Even in this view, we are unable to agree with the Advocate-General, that by virtue of the decision of the judicial Committee Ganesa Row acquired only a fourth share in the property. The language used in the judgment is that Ganesa Row “is remitted to his original rights under the decree in the suit of 1886.” It is clear that the two sons were not born until the decree in the suit was confirmed on appeal. At this time, Ganesa Row's share was one half. We must therefore overrule the contention that the decree should be only for the fourth share due to the plaintiff. Mr. Venkatarama Sastriar's contention that the compromise should be regarded as an unauthorised alienation and that the plaintiff should be given a decree for the whole amount on behalf of the family is opposed to the directions given by their Lordships of the Judicial Committee. We, therefore, agree with the learned Judge on this question. It was next contended that if the compromise Exhibit AA is set aside to any extent, Tuljaram Row should be permitted to prosecute O.S Appeal No. 4 of 1897. We think that this contention is well founded. There can be no doubt that on principles of equity, a party who has been prevented from enforcing his rights should be restored to the status quo ante, when the party proventing him has been permitted to recede from the compact either wholly or in part. It is true that the withdrawal of O. S. Appeal No. 4 of 1897 was not recorded as being the result of the compromise. The parties having settled the matter out of Court, the appellant informed the Court that the appeal will not be pressed. It is not denied that it was a condition of the compromise that the appeal should be withdrawn. Mr. Venkatarama Sastriar's contention that a suit may lie for a breach of the terms of the compromise, but that it should not furnish a ground for the restoration of the appeal sounds highly technical.

As regards the decided cases in Manohar Lal v. Jadunath Singh, Partab Singh v. Bhabuti Singh and in Vijaya Ramayya v. Venkatasuba Rao, the compromises were made decrees of Court, and the restoration of the status quo ante followed as a matter of course, when the compromise was set aside. But in Khajooroonissa v. Rowshan Jehan, the compromise was not embodied in the decree, and their Lordships of the Judicial Committee allowed a party to present an appeal which was withheld owing to the compromise of the First Courts decree. We think that the present case is within the decision of their Lordships. It must be said that there have been laches on the part of Tuljaram Row in seeking this right. He did not move this Court for the restoration of the appeal until long after the judgment of the Judicial Committee was pronounced. We have felt some doubts regarding the provision of the Code of Civil Procedure applicable to applications of this kind. This is not an application for the restoration of an appeal dismissed for default, and there are no other rules in the Order relating to appeals (O. 41) which enable such an application to be made. The learned Advocate-General does not want this application to be regarded as one for a review of the judgment dismissing the appeal. He has asked us to exercise our inherent powers under Sect. 151 of the Code. Whatever might be the correct designation of the application, we think that this is a fit case for restoring the appeal which was withdrawn as a result of the compromise; and we accordingly restore the appeal to the file and direct that it be disposed of on the merits.

The third question argued relates to the award of interest on the additional sum decreed in the appeal against the decree in C. S. No. 266 of 1886. The learned Judge who heard the case was of opinion that as interest would have been awarded in the final decree, if there had been no compromise and if an application was made in that behalf, the plaintiff was entitled to interest at 6 per cent. With all respect, we are unable to uphold this view. Interest is specifically charged upon a lakh and odd rupees. Uupon the particular sum in contest. There was no provision for interest It would be varying the decree of the Court, if interest which might have been allowed were granted now. We must disallow interest upon the sum of Rs. 17,727-6-1 which was added in the appeal on the original decree up to the date of FF when a demand for the amount with interest was made. To this extent, the decree of the learned Judge must be varied. Parties will pay and receive proportionate cost?.

O. S. Appal No. 72 of 1914.

In this appeal Ganesa Row claims that the half share decreed to him in the suit is his separate property and that his brothers, the 3rd and 4th defendants, have no right thereto. We do not think there is any substance in this appeal. Ganesa Row sued on behalf of the family and not in his individual right his plaint cannot be regarded as evidencing unequivocal intention on his part to obtain a divided status from the remaining members of his family. In fact, the plaint negatives any such intention. The decree in C. S. No. 266 of 1886 gave Rajaran Row, his father, a decree that Ganesa Row sued to preserve for the family. Therefore the declaration by the Judicial Committee in his favour was made not to him individually but as representing the undivided members of the family. Mr. Venkatarama Sastriar sought to reopen the questions settled by the two Full Benches of this Court. In Chinnu Pillai v. Kalimuthu Chetti it was pointed out that the alienation by a member of a joint family had not the effect of disturbing the undivided status and that the share to which the alienee was entitled was what it was at the time of the alienation. We refused to hear arguments against these propositions. Reliance was placed upon an observation of Krishnaswami Iyer, J., in that Full Bench case to the effect that a severance was effected, A recent Full Bench decision, Balabhadra Patro v. Khetro Doss, dissented from that view.

It was sought to be argued that the final conclusion of the Judicial Committee in Hardi Narain Sahu v. Ruder Perkash Misser can only be consistent with the view that the transfer by one member effected a severance. The question was neither argued nor decided, and we are unable to find any authority in that case, for the proposition now advanced. On the other hand, in Krishnasami Ayyangar v. Rajagopala Ayyangar it was held by this Court that the status was preserved notwithstanding the alienation by a member of the joint Hindu family. The decision of the Full Bench in Soundararajam v. T. R. M. A. R. R. Arunachalam Chetty does not affect this question. We therefore agree with the learned Judge that the half share decreed to Ganesa Row is the joint family property of himself and his two brothers. The appeal is dismissed with costs.

S.SAppeals dismissed.