Manohar Pershad, J.
1. The suit O. S. No. 56 of 1947 out of which these two appeals No. 159 of 1952 on behalf of the second defendant and the other No. 167 of 1952 on behalf of the plaintiff arise was filed by Poanchalavarapu Venkata Satya Sitha Ramanjaneya Ratnam for a declaration that the settlement deed dated 2-2-1942 executed between the plaintiff's father and defendants 1 to 4 was not binding on her, for possession of the B schedule properties after ejecting defendants 1 to 9, for past mesne profits to the extent of Rs. 878-11-0 from the third defendant on item 4 of the B schedule property together with future profits and interest thereon and for the recovery of the C schedule moveable properties or their value Rs. 315/-.
The plaintiff in O. S. 56 of 1947 is the daughter of the 10th defendant and the widow of the late Panchalavarapu Venkata Satya Surya Prakasa Rao. The first defendant is the mother of the late Venkata Satya Surya Prakasa Rao. Defendants 2 and 3 are the sisters of the late Prakasa Rao. The 5th defendant is the husband of the 3rd defendant. The 4th defendant is the son of defendants 3 and 5. Defendants 5, 6 and 7 are divided brothers and sons of the 8th defendant. The 9th defendant is the alienee of some of the suit properties. The 10th defendant is the father of the plaintiff. The plaint schedule properties belonged to the late Satya Surya Prakasa Rao who died on 19-3-1941.
Before his death he executed a will to the effect that all the suit properties should devolve on the plaintiff after his death, with full powers of alienation excepting item 3 of the plaint B schedule in which a life estate was created in favour of the second defendant after her death, a full estate in favour of the plaintiff, with a further direction that the first defendant who was his mother and the mother-in-law of the plaintiff should live with the plaintiff in the family house till her death and in case the first defendant was not willing to live with her, the plaintiff should give her two acres of land for her maintenance and two rooms in the family house for her residence till her death.
This will was tendered for registration on 21-4-'1941 before the Sub-Registrar, Narsapur, who refused to register it on the objection of the first defendant. On appeal to the District Registrar at Eluru, the order of the Sub-Registrar was confirmed. The plaintiff's next friend, her father, the 10th defendant, filed O. S. No. 43 of 1942 on the file of the District Munsif's Court, Narsapur for registration of the will. This suit was decreed on 31-3-1942 and in pursuance of the said decree, the will was registered on 25-4-1942. On 2-2-1942, a settlement deed was executed; under the deed items 1 and 2 of B schedule were given to the first defendant, item 3 to second defendant with full powers of alienation, item 4 to the third defendant for life and after her death absolutely to the 4th defendant and item 5 to defendants 1, 2, and 3 for life with vested remainder in favour of the 4th defendant. C schedule moveable properties worth Rs. 315/- were given away to the 1st defendant without being mentioned in the settlement deed.
The plaintiff alleges that the said settlement was void in law as the deed was executed on behalf of the plaintiff by the 10th defendant who was not her legal or qualified guardian, She further alleges that the deed was not for her benefit who was a minor then as 1/3 of her husband's estate was given away to defendants 1 to 4 under the deed. She further states that on the date of the deed or prior to it there was no bona fide dispute for settlement among the members of the plaintiff's husband's family. The debts mentioned in the deed were bogus debts and were not subsisting on the date of the settlement, that the first defendant had no authority to adopt a son under the alleged will of her husband and that even if there was any such authority that authority ended as soon as Prakasa Rao executed the will.
With regard to the first item and second item of the B schedule properties, it was alleged that they were without consideration. As regards the third item of B schedule property it was alleged that the said lease was not effective because the second defendant had only a life interest. The 4th item of the B schedule property, which was marked in favour of the 7th defendant, it was alleged, was also without consideration. Defendants 1 and 2 in their joint written statement denied that Prakasa Rao executed any will and stated that he died intestate, that the plaintiff's! father i.e., defendant 10 fabricated the will and tried to get it registered, that the Sub-Registrar refused to register the will on the ground that it was a forged one, that the 10th defendant later on took the matter in appeal which was also rejected, that during the pendency of the litigation before the District Registrar, the plaintiff's father on the advice and interference of several mediators wanted to enter into a family settlement with defendants 1 to 4, with the object of settling all ligitimate disputes between the parties, that the mediators decided the terms of the family settlement and a deed dated 2-2-1942 was executed to this effect that the said settlement deed was a valid and bona fide transaction binding on the plaintiff, that it was also beneficial to the plaintiff, that in pursuance of the settlement the plaintiff filed a suit and got a decree for compulsory registration of' the will, that none of the defendants contested the suit as they agreed to the registration of the will in pursuance of the terms of the settlement deed, that in pursuance of the settlement deed, the properties of the late Prakasa Rao were divided and the plaintiff got the A schedule property as her share and the B schedule property was given to defendants 1 to 3.
It was further averred that the third item of B schedule property did not form part of the estate of the late Prakasa Rao and that it was the stridhana property of defendants 1 and 2, that the decree in O. S. 43 of 1942 relating to the compulsory registration of the will was not null and void and the said court had no pecuniary jurisdiction to entertain the suit. Legal objections were also raised that the Court-fee paid was not proper, that the plaintiff being a party to the settlement deed could not file a suit for declaration without paying the Court-fee on the full value of the B schedule properties. Defendants 3 and 4 have filed a joint written statement to the effect that the plaintiff s father-in-law executed a will on 20-8-1925 and under the said, will he gave 2 acres of land to his wife, the first defendant for her maintenance and also gave her authority to adopt a son in case the then existing son, i.e., the plaintiff's husband should die.
The defendants denied that the plaintiff's husband executed a will before his death and stated that he was suffering from a serious type of fever and delirium for over a week and was not in a position to execute the will, that subsequent to his death the plaintiff's father fearing that the first defendant would adopt a boy in pursuance of the authority given to her under her husband's will forged a will purported to be executed by the plaintiff's husband, that the said forged will was presented for registration on 21-1-1941 and it was rejected, that thereupon the plaintiffs father acting as guardian to the plaintiff and with a view to secure some property for her sought tor a compromise with defendants 1 to 4 through mediators, that through the assistance of the mediators the plaintiff's father brought about a settlement of all the disputes between the plaintiff and defendants 1 to 4 and entered into a settlement dated 2-2-1942 whereby 2/3 property was given to the plaintiff and 1/3 was given to defendants 1. 3, and 4, that the said settlement represents a bona fide settlement of disputed claims, that the plaintiff's father both as the natural as well as the legal guardian of the plaintiff had authority to enter into a settlement and that the said deed was binding on the plaintiff, that the ex parte decree in O. S. No. 43 of 1942 obtained by the plaintiff for compulsory registration of the will of the husband was null and void as the said Court had no pecuniary jurisdiction to entertain the suit, that the said decree does not affect the validity of the family settlement, that they also denied that the settlement deed was ante-dated and that the plaintiff's father colluded with defendant 5 to bring about a settlement.
They however stated that the settlement deed was beneficial to the plaintiff. They further averred that improvements were made in the family house that fell to the share of the third defendant and on item 3 of the B schedule property. Defendant 5 filed a similar written statement as that of defendants) 8 and 4. Defendants 6 to 8 have filed a written statement similar to that of defendants 2 and 4 and denied that they were members of a joint family and stated that the 5th defendant separated in 1936 and that they were not necessary parties to the suit. They further stated that the settlement deed was a valid and bona fide transaction,
The 7th defendant in his written statement admitted that he was the natural brother of defendants 5 to 6 and stated that he was given in adoption to Manthri Raghavulu's family in East Godavari District and that therefore he had no connection with defendants 6 to 8. He however denied that the plaintiff's husband executed a will and stated that he was suffering from high fever and delirium. It was further averred that the settlement deed was a bona file transaction and binding on the plaintiff, and that the mortgage executed in his favour was for legal necessity and binding on the estate. Legal objections were also raised that the plaintiff cannot get a decree for setting aside the mortgage deed without a prayer for the same, that he was not a necessary party to the suit, that the decree in O. S. 43 of 1942 on the file of the District Munsifs Court, Narasapur was fraudulent and collusive and was void and that the plaintiff was estopped from questioning the validity of the settlement deed.
The 9th defendant in his written statement stated that the first item of the plaintiff's B schedule was sold to him for a sum of Rs. 2,000/- on 14-9-1946 for discharging the debts binding on the plaintiff as well as the estate of the late Prakasarao, that the first defendant who transferred the property to him had absolute rights under the family settlement dated 2-2-1942,' that he was a bona fide purchaser for valuable consideration. The 10th defendant is the father of the plaintiff and he remained ex parte. On these pleadings 16 issues were framed.
2. The other suit O. S. No. 40 of 1948 was originally filed in the District Munsifs Court, Narasapur as O. S. No. 146 of 1947 on the file of the said Court. This suit was transferred to the Court of the Subordinate Judge of Narasapur along with O. S. No. 56 of 1947 by an order of the District Court dated 28-6-1948. It was renmubered as O. S. No. 40 of 1948. This suit was filed by the second defendant in the former suit O. S. No. 53 of 1947. This suit is to recover future maintenance at the rate of Rs. 50/- per year and Rs. 3007- towards arrears of past maintenance and for a charge only. The defendant in this suit is the plaintiff in the former suit O. S. 56 of 1947. The allegations in the plaint arc, that the plaintiff's father late Panchalavarapu Vira Raghavulu executed a will dated 20-8-1925 in which he directed that a sum of Rs. 507- every year should he paid to the plaintiff towards her maintenance from out of the income in his property and a room in the family house for residence.
In pursuance of the recitals in the will, the plaintiff's mother Panchalavarapu Balanagamma was giving maintenance to her till 19-3-1941. After that date, the defendant's father who was the guardian of the defendant agreed to give maintenance to the plaintiff at the same rate and executed a letter dated 26-4-1942 in favour of the plaintiff, that after the death of the defendant's husband the defendant represented by her father and the other members in the family entered into a family settlement on 2-2-1942, but in this family settlement no provision was made for the maintenance of the plaintiff except that she was given one room for residence in the family house; that the defendant and her father went back on the agreement dated 26-4-1942 and failed to give any maintenance to the plaintiff, that when the plaintiff gave notice to the defendant and her father on 19-9-1943 the defendant's father gave a reply with false allegations, that the plaintiff filed a suit in O. S. 19 of 1930 in the Sub-Court, Narasapur to recover maintenance from the members of her deceased husband's family and obtained a decree for maintenance, that the decree became infructuous because the family property of the late husband was taken away by the creditors and that there was no property left out of which the maintenance could be given to her.
The plaintiff therefore prayed that she was entitled to future and past maintenance and to a charge on the suit property. The defendant in her written statement denied that her father-in-law executed any will in favour of the plaintiff and stated that he and her husband were living as members of a joint and undivided Hindu Family and that her father-in-law could not make a will of the joint family property. It was further stated that as the plaintiff admits that she had obtained a decree for maintenance against her husband's estate she was not entitled to ask for additional maintenance from the defendant. She however denied that Balanagamma was maintaining her. It was further averred that the settlement deed was not binding on her and that the suit was barred by limitation. 8 issues were framed. Both the suits O. S. 56 of 1947 and O. S. 40 of 1948 were tried together as directed by the District Court in the order dated 28-6-1948 and evidence was recorded in the earlier suit O. S. No. 56 of 1947.
The Subordinate Judge on the evidence led by the parties in O. S. 56 of 1947 held that the settlement deed Ex. B-26 dated 2-2-1942 was void and was not binding on the plaintiff, that the plaintiff was entitled to recover possession of the B schedule property that the plaintiff was entitled to recover the past profits on item 4 of the B schedule property for a period of 3 years immediately preceding the suit and that the plaintiff was entitled to future profits' on all the B schedule properties and dismissed the rest of her claim. In O. S. No. 40 of 1948. the Subordinate Judge held that the plaintiff was entitled to past and future maintenance with the charge on item 3 of the B schedule property. Hence these appeals on behalf of the second defendant and the plaintiff'.
3. We would first take up the appeal of the second defendant Sri Parthasarathy, the learned counsel for the appellant urged that the Court below has fallen into an error in coming to the conclusion that Ex. B-26 dated 2-2-1942 was void and was not binding on the plaintiff. He contended that Ex. B-26 was a bona fide settlement of the disputed claims between the members of the family and was therefore valid and enforceable. He next contended that the Court below has erred in holding that the plaintiff's father could not validly represent the minor plaintiff in Ex. B-26 when there were no relations living on the husband's side of the plaintiff who could act as guardian. In this connection, the learned counsel for the appellant drew our attention to Mayne's Hindu Law 9th Edition, page 228, Sections 6 and 7 of the Guardians and Wards Act and to the following authorities: Khudirarn Mookerjee v. Bonwari Lal Roy, ILR 16 Cal 584 (A); Chinna Alagumperumal v. Vinayagathammal. 55 Mad LJ 861: (AIR 1929 Mad 110) (B); and Ganga Devi v. Narshing Das, AIR 1935 Lah 25 (C).
He next contended that even if the plaintiff's father could not act as a natural guardian, he was as a matter of fact acting as a de facto guardian and the power of a de facto and de jure guardian being the same, the Lower Court was not justified in holding that he could not properly represent the minor plaintiff. Reliance was placed on the cases of Sriramulu v. Pundarikashayya, AIR 1949 FC 218 (D) and Ponnammal v. Srinivasarangan, (S) AIR 1956 SG 162 (E). Relying on the case ot Kailash Chandra v. Rajani Kanta, AIR 1945 Pat 298 (F), it was pontended that if the settlement deed is for the benefit of the minor, it is immaterial whether the minor was represented by de jure or a de facto guardian.
4. Sri Subrahmaniam, the learned counsel for the respondent urged first that the lower Court has rightly held that the settlement deed dated 2-2-1942 was void and not binding on the respondent. He next contended that the Court below has rightly held that the respondent's father could not represent the respondent as ho was not the natural guardian. Reliance was placed on Ethilavulu Ammal v. Pethakkal, : AIR1950Mad390 (G) and Chennappa v.Onkarappa, ILR (1940) Mad 358: (AIR 1940 Mad 33) (FB) (H). He next contended that it is not correct to say that the respondent's father acted as a de facto guardian and that the powers of a do facto and de jure guardian were the same.
Conceding that if the settlement deed was bona fide and was a settlement of conflicting claims between the members of the family and it would be binding, he contended that there was absolutely no basis for any claims, and it cannot he said that it Was a settlement of the disputed claims. In this connection the learned counsel drew our attention to the various claims of disputes referred to in the will. It was next contended relying on Order 32, Rule 7, C.P.C. that as the permission of the Court was not taken to enter into a compromise and the settlement deed was entered into by the guardian bv exercising a fraud on the Court, the respondent was not bound by the said deed.
Our attention was drawn to Bapayya v. Bhushayya, : AIR1950Mad397 (G). Lastly, it was contended that there is absolutely no proof that the settlement deed was for the 'benefit of the minor and the reversioners and unless there is such a proof the minor respondent is not bound by the same. In this connection the learned counsel drew our attention to the cases of Rajpali Kunwar v. Mt. Surju Rai, AIR 19.36 All 507 (J), Seetharamamma v. Appiah, ILR 49 Mad 768 : (AIR 1926 Mad 457) (K), Suryaprakasam v. Gangaraju, 1955 Andh LT (Civil) 664: ((S) AIR 1956 Andhra 33) (FB) (L), Amrit Narayan Singh v. Gaya Singh, ,34 Mad LJ 298: (ATR 1917 PC 95) (M) and Mayne's Hindu Law, page 297.
5. The sole point to be considered in this appeal is whether the settlement deed dated 2-2-1942 is valid and binding on the respondent. The contention of the appellant is that after the Sub-Registrar, Niirasapur refused to register the will and when the matter was pending in appeal before the District Registrar, the respondent's father P.W. 8 and defendants 1 to 3 and 5 through the intervention of the mediators compromised their disputes and entered into a settlement and that settlement was beneficial to the respondent and was binding on her. The plea of the respondent is that there was no bona fide dispute between the parties to enter into a family settlement and that it was not beneficial to her and also that P.W. 8 who was neither the natural nor lawful guardian of the respondent could represent her.
The settlement deed is Ex. B-26 purported to have been executed on 2-2-1942 and was admittedly registered on 29-4-1942. The parties to this deed were plaintiff-respondent represented by her father, the 10th defendant on one side; the defendants Nos. 1 to 4 and another minor by name Venkata Ganesh Shiva Shankar in the other. The 4th defendant and the minor Venkata Ganesh Shiva Shankar are sons of defendants 3 and 5. They were minors on the date of the settlement deed and they were represented by their father the 5th defendant as guardian. The document is described as a settlement deed and it is signed by all the parties and attested by 8 witnesses apart from the scribe. Three out the eight attesters were examined on behalf of the defendants. They are D.Ws. 7, 15 and 16. The father of the respondent who was examined as P.W. 8 also admits the execution of the settlement deed.
The Subordinate Judge has held that there was no dispute relating to the genuineness of the settlement deed. This finding is not challenged before us on behalf of the respondent. Under the settlement deed the property and the debts binding on the estates are partitioned. The respondent-plaintiff was given A schedule properties and the E schedule debts to be discharged out of this property. The first defendant was given the B schedule properties and the F schedule debts. The C schedule property was given to the second defendant without any liability to discharge debts. The third defendant and her minor sons who were parties Nos. 4, 5 and 6 in the settlement deed wore given the D schedule lands and the G schedule debts.
The properties given to the respective parties were given with absolute rights. The tenth defendant who is the father of the plaintiff-respondent was appointed as guardian on behalf of the plaintiff who was minor then. The fifth defendant was appointed as the guardian of the minor parties Nos. 5 and 6. The respondent was given authority to adopt a son and the defendants were directed not to place any impediments before her if she chose to adopt a son. The mother of the testator and his widowed sisters' i.e., defendants 1 and 2 were given the right of residence in a portion of the family house mentioned in the D schedule and allotted to the shares of defendants 4, 5 and 6 till their life-time.
6. We would now deal with the main objection raised by the plaintiff-respondent against the settlement deed. The first contention is that there is no bona fide dispute for a settlement at all between the parties under which any of the defendants could claim immediate possession of the entire property or a portion of it. It is further urged that none of the defendants had any antecedent title to the property. We would first like to discuss the law relating to the family settlement and the conditions required for such a settlement. Lord IIalsbury in his Laws of England, Volume 14, page 540, Pokhar Singh v. Mt Dulari Kunwar. AIR 1930 All 687 at p. 689 (N), defines a family arrangement as
'a transaction between members of the same family which is for the benefit of the family generally, as, for example, one which tends to the preservation of the family property, to the peace or security of the family and the avoidance of family disputes and litigation or to the saving of the honour of the family.'
It will be noticed that avoidance of family disputes is only one of the main grounds which go to validate a family arrangement. In the case of Sashi Kantha v. Promode Chandra, AIR 1932 Cal 600 (O), an identical question had arisen. It was held by Mukerji and Guha JJ,
'A family settlement to be binding upon the estate or upon persons who were not parties to it must be one concluded with the object of settling a bona fide dispute, arising out of conflicting claims to property, which was either existing at the time or was likely to arise in future. Bona fides is the essence of its validity therefore there must be either a dispute, or at least an apprehension of a dispute, a situation of contest which is avoided by a policy of giving and taking; or else all transfers or surrenders will pass under the cloak of a family arrangement.'
In the case of AIR 1930 All 687 (N) the Allahabad High Court held :
'For a family arrangement to be good it is not necessary that there should be a family dispute which has to be settled or composed. A family arrangement to be good need not necessarily be a 'compromise of doubtful rights'.'
In this case, Mukerji and Bennet JJ. relied on the case of Williams v. Williams, 1867-2 Ch A 294 (P), and held that for a family arrangement to be good, it was not necessary that there should be a family dispute which had to be settled or composed. The case of Williams v. Williams (P) was approved in India in the case of Helan Dasi v. Durga Das Mondal. 4 Cal LJ 323 (Q) and smother case of Mittar Sain v. Data 'Ram, AIR 1926 All 194; 90 IC 1000 (R). The Full Bench of the Allahabad High Court in the case of Mr. Rajpali v. Surju Rai (J) had held that where the Hindu widows on the one side and her collaterals on the other, are both claiming title to the estate and a right to immediate possession, there can be said to be a bona fide dispute between the parties which can be settled under a family arrangement.
It was further observed in this case that if the reversioners are merely challenging the validity of the gift executed by the widows in favour of an alleged heir and are not claiming any immediate title in themselves, they cannot by means of an agreement partition the property and acquire an absolute interest for themselves and their own heirs to the exclusion of the real reversioners who might happen to succeed on the date of the death of the surviving widow when succession opens. An identical question had arisen in the Nagpur High Court in the case of Buchi Bai v. Nagpur University, AIR 1946 Nag 377 (S), Pollock and Sen JJ. observed :
'In order that there may be valid family arrangement it is not necessary that there should be a dispute in praesenti or that each party to the compromise should believe himself justified on law and facts in the claim he is putting forward; it is sufficient if the parties are putting forward conflicting claims and intend to fight the matter Out.'
The Privy Council in the case of Ramayya v. Lakshmayya, ILR 1943 Mad 1: (AIR 1942 PC 54) (T), held that in order to have a basis for a valid family settlement, there must be a competent title to properties in dispute. The Privy Council in another case K. Ramakrishna Raju v. K. Narayana Raju, AIR 1949 PC 165 (U), observed that a compromise effected by one of the members of a family relating to genuine disputes between the parties was binding. This was a case where five brothers constituted a Hindu Joint family. As a result of family dissensions the brothers decided to become separate. The brother who was the Manager divided the properties into five shares and other brothers were given choice to have their shares. The Manager took the last share. A few days later, he complained of the inequality of his share.
His complaint was that certain lands held as security for the mortgage were of much less value than the money secured on them. He insisted that either a fresh division or a re-adjustment of the family properties comprised in all the shares should be made so as to equalise the value of the shares. He felt that he was unjustly treated and was determined to litigate until he was persuaded by two mediators to compromise his claim. On the advice of these two mediators it was decided that no change in the shares of the three younger brothers was necessary and it was agreed that the other brother should give up his share to the manager and take his share on condition of the manager undertaking to discharge certain debts due by the other brother amounting to Rs. 10,000/-. We may at this stage refer to the observations of their Lordships at page 170, paragraph 30 ;
'In this sense, there was in their Lordships' view a genuine dispute, wrong headed it may be and more likely to fail than to succeed, though indeed such a result was by no means certain in as much as the Subordinate Judge after a careful analysis came to the_ conclusion that the mortgaged property was insufficient as security and that appellant 1 was ignorant of this fact and in any case that the difference in value between the two shares was about Rs, 20,000/-, a difference which would justify a payment of Rs. 10,000/- or thereabouts to equalise the shares.'
In the light of these principles, if we refer to the facts in the instant case, we find there was really a conflicting claim to the estate of the deceased existing at the time of the settlement deed. The widow was claiming the property of her husband as an absolute owner under the will whereas her mother-in-law and other members were challenging the will alleging it to be a forged document and if the will was rejected the widow would succeed to the properties only as a limited owner. Further, there were disputes relating to certain debts. The mother-in- law s claim was that those debts related to the family whereas the contention of the widow was that those were personal debts and were not liable to be paid from the assets of the family.
There was again a dispute between the widow and her mother-in-law and sister-in-law with regard to the land bearing Survey No. 182/2 of Siddantham village. The contention of the mother-in-law and sister-in-law was that this was purchased with the Stridhana property of the mother-in-law, whereas the widow alleged that the said land was purchased with the aid of the assets of the family of Surya Prakasa Rao. There was also a dispute with regard to the maintenance and the right of residence of the sister-in-law. There was also a dispute regarding the power of the mother-in-law to take in adoption. The teamed counsel for the appellant rightly pointed out that in deciding whether the family settlement is valid or not, what is to he seen is whether it was a bona fide settlement of conflicting claims: in other words, it is contended that there must be either a dispute or at least an apprehension of a dispute.
As stated above, the will itself refers to a number of disputes present at the time of the settlement. Sri Subrahmanyam, the learned counsel for the respondent-plaintiff took us through each of the items of the alleged dispute and tried to convince us that there could not be any valid dispute. The learned counsel for the respondent dealt with the legal aspects of those claims also, as for instance, he urged that the mother-in-law was not competent to acknowledge the debts that her right to adopt had come to an end when the deceased executed a will and so on. We cannot agree with the contention of the learned counsel, for the test, in our opinion, is the existence of conflicting claims and not whether the party malting a claim would ultimately succeed or not; or whether the debts acknowledged were binding or that the power of the mother-in-law to adopt had come to an end.
The idea that the existence of a dispute is essential is due to this, that when there is a dispute, the settlement of it will constitute the consideration for the parties to act as they propose to do. The learned Subordinate Judge on the material on record has come to the conclusion that the disputes in the present case, in his opinion, amounted to competing titles on the part of some of the disputants and having come to that conclusion has held that the settlement dated 2-2-1942, Ex. B-26, amounted to a family settlement in which the bona fide disputes between the member of the family (and ?) the reversioners of the last male holder were settled.
7. The next objection on behalf of, the plaintiff-respondent in regard to this settlement deed is that her father P.W. 8 had no right to represent her who was a minor then, and as such, the settlement deed was void and unenforceable. The contention of the appellant is that when there was no other relation on the husband's side of the respondent, P.W. 8 who was her natural father was competent to act as guardian and even if he could not be regarded as natural or de jure guardian, he could as well be regarded as de facto guardian and the powers of a do facto guardian being the same, the respondent would be bound by the acts of the guardian it is shown that it is in her interest.
8. It is well settled that a Hindu father is not only the natural but also the legal guardian of his infant children. In the case of a girl, the moment she is married, her husband becomes the legal guardian even though she may be a minor. We agree with the contentions of the learned counsel for the respondent that in preference to her paternal relations, the relations of the deceased husband are entitled to be the guardian of the Hindu widow. But the question arises as to who could be her guardian if there is no relation either male or female on the husband's side.
The contention of the respondent is that in such cases, the State would be her guardian, whereas the appellant alleges that her natural father would be her guardian. Our attention is drawn to Mayne's Hindu Law, 11th Edition, para 288, ILR 16 Cal 584 (A), 55 Mad LJ 861: (AIR 1929 Mad 110) (B) and AIR 1935 Lah 25 (C). We End sufficient force in the contention of the learned counsel for the appellant. The cases relied upon are based on the text of Narada, The text of Narada Chapter XIII, verses 28 and 29 cited in the Dayabhaga, Chapter XI, S. 1, paragraph 64 runs thus :
'When the husband is deceased, his kin are the guardians of his childless widow in the disposal of property and care of herself as well as in her maintenance they have full power. But if the husband's family be extinct, or contain no male, or he helpless, the kin of her own father are the guardians of the widow if there be no relations of her husband within the degree of a sapinda'.
The learned counsel for the respondent could not show anything against the text of Narada. In the instant case, after the marriage of the plaintiff her husband became her guardian. He died on 19-3-41. In the will, he appointed the natural father as the guardian of the respondent. The question arises whether the husband has any right to appoint a guardian for the minor wife by a testament. Mayne on Hindu Law, 11th Edition, at page 287 says that the father alone has got the power to appoint a testamentary guardian to his minor children and no other person has a right to appoint a testamentary guardian.
It follows therefore that the respondent's husband could not appoint P.W. 8 the natural father of the respondent to act as guardian and he cannot act as her lawful guardian. In these circumstances, a lawful guardian could only be appointed to the plaintiff (respondent) by a Court of Law under the Guardians and Wards Act, but it seems that no attempt was made by any of the parties in the instant case to get a legal or lawful guardian appointed for the minor plaintiff after the death of her husband. It appears that after the death of the respondent's husband, P.W. 8 was not only looking after her and her property, but was acting as a de facto guardian. This fact is sufficiently borne out by notices Exs. A-6, A-8, the certified copy of judgment in O.S. No. 43 of 1942, Ex. A-2, the certified copy of the decree in that suit, Ex. A-3, his own statement, as P. W. 8 and the statement of the respondent herself. Ex, A-6 is the registered notice issued by the first defendant to the 10th defendant dated 7-5-1941. This shows that P. W. 8 had the keys of the safe with him. Ex. A-9 is the reply sent by P.W. 8 to defendant 1 to her notice of 7-5-1941. Ex, A-2 shows, that the suit O.S. No. 43 of 1942 was Bled by the respondent through her father acting as guardian. Ex. A-3, the decree shows P.W. 8 as the, guardian of the respondent. P.W. 8 at page 147 of the printed book states :
'I conducted all the previous proceedings relating to the suit will on behalf of my daughter....... 'I compromised the disputes with the defendants on or about the end of January 1942'.
Then again at page 148, the witness deposes :
'After the death of my son-in-law, I took lease deeds in favour of the plaintiff from some of the tenants from I. V. V. Ramachandra Rao, Alamur Suryanarayana (P.W. 7) and Mancharla Venkatappaiah.'
Then again the witness says ;
'After the settlement deed, I endorsed Ex. B-95 in favour of the defendants on 29-4-1942 ........ after the plaintiff attained majority, I handed over her property to her in the year 1946 or so.'
At page 149 he states :
' I see Ex. B-75. It is a pronote executed by the first defendant in favour of Achanta Subba Rao. I accepted this debt as true at the time of settlement deed and paid 2/3 of the amount due under it to Gangaru Viraraghava Rao, the son-in-law of Achanta Subba Rao.'
Then he again says :
'After the death of Achanta Subbarao, the Stri-dhanam lands were leased out to two tenants Mamidisetti Viraswami and Mamidisetti Venkanna by me for the plaintiff's share. I have attested in Ex. B-96.'
At page 150, line 28, the witness says :
'Now I am living with the plaintiff at Narasapur for the last four or five years.'
At page 151, line 21, he states :
'I entered into the settlement deed for the benefit of the (my) sister and her daughters'.
The plaintiff in her statement at page 117 of the Printed Book, line 41, says :
'My father is living with me with my mother and brothers in the portion of my husband's house.'
At page 119, line 19, she says:
'My father later on filed O. S. No. 42 of 1943 on the file of the District Munsifs Court, Narsapur for compulsory registration of my husband's will.'
At page 121, line 33, she says :
'My father got possession of the A schedule property in pursuance of the settlement deed and enjoyed the income on the land during my minority.'
At page 122, line 1, she says :
'Even now. I am living with my father. All of us are living and eating together.'
9. So far as the powers of de facto and de jure guardian are concerned, there is no distinction under the Hindu Law. The leading case on the point is the decision of the Judicial Committee in the well known case of Hanooman, Pershad Pandey v. Mt. Babooee Mandraj Koonweree 6 Moo Ind App 393 (PC) (V). This case arose out of a swit commenced by one Lal Inder Gownshingh to set aside a mortgage executed in respect of certain properties appertaining to his estate during his infancy by his mother Rani Digambari in favour of defendant 1.
The allegations in the plaint were that Rani managed the estate as guardian during his minority and being a pardanashin lady of no worldly experience it was imposed upon her by her servant's agents, that the mortgage in question was executed without any consideration, without her knowledge and authority and it was the result of fraud and misrepresentation practised upon bv her by the defendant, money lender. The defendant in answer stated that the document was a valid one and that the plaintiff himself after attaining majority ratified it. The first Court held in favour of the mortgagee and dismissed that suit. On appeal, the judgment was reversed and the relief claimed by the plaintiff was allowed except in so far as it was abandoned by him. This judgment was set aside on appeal by the Privy Council, and it was held :
'Under the Hindu Law, the right of a bona fide incumbrancer who has taken from a de facto Manager a charge on lands created honestly for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge and it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the de jure title. Therefore had the Ranee intruded into the estate wrongfully and even practised a deception upon the Court of Wards ...... it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer.'
This priciple. their Lordships pointed out was in consonance with the rules of the Hindu Law which were embodied in several texts which were set out in Colebrooke's Digest and borne out by the decision of the Sadar Dewani Adaulat in the case of Gopee Churun Burral v. Ishwuree Lukhee Dinia, 3 S D A Rep 93 (W). Their Lordships further observed :
'The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mis-management of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. ...... Their Lordships think that that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the Benefit of the estate. But they think that, if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge and they do not think that, under such circumstances he is bound to see to the application of the money.'
The principle enunciated in Hanooman Pershad Panday's case (V) has been followed since then in numerous cases by the Privy Council as well as by the High Courts in India and the principle has been applied to alienations by limited heirs like the Hindu widow, by managers of Hindu Joint family and religious endowments and also by persons in charge of the estate of lunatics. There are quite a number of cases decided by the different High Courts in India where it has been held on the authority of the decision in Hanooman Pershad Panday's case (V) that the powers of alienation for necessity or benefit of the infant can be exercised by a de facto guardian as well; and so far as these powers are concerned, there is no distinction in Hindu Law between a de jure and a de facto guardian.
We may in this connection refer to the cases of Mohanund Mondul v. Mafur Mondul, ILR 26 Cal 820 (X); ILR 49 Mad 768 : (AIR 1926 Mad 457) (K); and Kundanlal v. Beni Pershad, ILR 13 Lah 399: (AIR 1932 Lah 293) (Y). The learned counsel for the respondent relying on the Full Bench case of Pundarikakshayya v. Sree Ramulu, ILR 1946 Mad 242 ; AIR 1946 Mad 1 (FB) (Z) and Pratap Singh v. Sant Kaur, ILR 1938 Lah 313: (AIR 1938 PC 181) (Zl), contended that a person who has no authority under the personal Lal applicable to the minors to enter into a contract or to make a compromise of a family arrangement on their behalf has no power to bind a minor or his estate by executing a promissory note or by acknowledging the liability of a debt even though the money was borrowed for a necessary purpose.
The first case was a case where the de facto guardian had executed a promissory note in the name of the minor. It was held that a de facto guardian cannot in law execute a promissory note in the name of the minor even though the money was borrowed for a necessary purpose and thereby bind the minor's estate. Their Lordships observed that a power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt. They further observed :
'It is one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a negotiable instrument on the minor's behalf.'
This case therefore does not help the contention of the learned counsel for the respondent and negative the power of a de facto guardian to enter into a family settlement on behalf of the guardian. The case of ILR 1938 Lah 313: (AIR 1938 PC 181) (Z1), is also distinguishable and does not help the contention of the learned counsel for the respondent. In that case, it was held that a Hindu minor was not bound by an agreement entered into by a de facto guardian. It was suggested by the learned counsel for the respondent that the rule applied in all cases even where the contract was for a necessary purpose. We may point out that their Lordships were not considering a case where a de fecto guardian had entered into the contract for a necessary purpose within the meaning of Hanooman Pershad Pandey's case (V). The contract in Pratap Singh's case (Zl) does not refer to such a situation and therefore the decision of their Lordships has no bearing on the present case.
10. Another case to which our attention was drawn in the Full Bench case of this Court, 1955 Andh LT (Civil) 664: ((S) AIR 1956 Andhra 33) (L). The question referred to the Full Bench was whether the contract entered into by the guardian of a Hindu minor for sale or for purchase of immovable property is specifically enforceable against the minor. In this case, the previous Judicial Committee's case of Hanooman Pershad Pandey's (V) and the Federal Court's decision in AIR 1949 FC 218 (D) have been approved and followed and the question of the powers of a de facto and de jure guardian has also been considered and it had been held that there cannot be any essential distinction between the contract of sale and contract of purchase by a guardian and that both depend for their validity on the competency of the guardian acting within the scope of his power under the Hindu Law. Pointing out the distinction between the powers of the guardian to execute a promissory note or borrow for necessary purposes it is further observed at page 690 (of Andh LT): (at p. 45 of AIR) of the judgment:
'A guardian cannot execute a promissory note on behalf of a minor for the reason that the minor's liability under the Hindu Law is conditional and, therefore, no unconditional undertaking can be given by him. The guardian cannot also enter into contracts of loan making the minor, or his estate liable direct to the creditor. But where a guardian personally makes himself liable under a contract, the creditor can, getting into the shoes of the guardian, indirectly work out the guardian's rights of subrogation against the minor's estate. Except in the case of necessaries supplied to the minor governed by the provisions of Section 68 of the Contract Act, there cannot be direct recourse by the creditor against the minor or his estate'.
From the above discussion, it is clear that the powers of a de facto and a de jure guardian under the Hindu Law are the same and a de facto guardian in case of necessity and for the benefit of the minor can enter-into contracts. In the view of the matter we cannot agree with the contention of the learned counsel for the respondent that P.W. 8 could not represent the respondent.
11. Another ground taken by the respondent to show that the settlement deed was invalid and not binding on her is that the guardian did not take tile permission of the Court under Order 32, Rule 7, C. P. C. before entering into a compromise and that he exercised fraud on Court. The learned counsel placed reliance on the case of : AIR1950Mad397 (FB) (I) and an unreported judgment of this Court in the case of P. Appalaraju v. Tylayedu Kondalu, Appeal No. 724 of 1951: (AIR 1958 Andhra Pra 713) (Z2).
12. We are very reluctant to accept the contention of the learned counsel for the respondent. This rule is laid down for the protection of minors who are unable to look after their own interest and to whom the Court stands in qunsi tutelary position. The guardian and next friends are some times careless and occasionally lacking in intelligence. Therefore, the duty of safeguarding the interests of the minor is thrown upon the Court. The rule forbids the next friend or guardian to enter into an agreement or compromise on behalf of the minor without the leave of the Court expressly recorded in the proceedings and with reference to the suit. The words 'in the proceedings' and 'with reference to the suit' are important.
They clearly indicate that there must be a suit or proceedings pending. Otherwise, the words 'with reference to the suit' would become meaningless. The words 'with reference to the suit' refer to substantive rights and liabilities of the parties involved in the suit. What is contended here is that though at the time when this settlement deed was executed, i.e., 2-2-1942, the suit O. S. No. 43 of 1942 was not actually pending, still it was hit by the provisions of Order 32, Rule 7, C. P. C. and the guardian could not enter into a settlement deed; in either words, it is contended that Order 32, Rule 7 contemplates an agreement being made after the decree also. There is no scope' for such agreement in the instant case.
13. Order 32, Rule 7, therefore, in our opinion, I is not applicable to the present case. In this view of the matter we do not wish to discuss the authorities cited by the learned counsel for the respondent. There is no question of the guardian exercising fraud on the Court. We cannot, therefore, agree with the opinion of the learned Subordinate' Judge that the compromise deed is invalid and not binding on the minor. We are definite that the settlement deed dated 2-2-1942 is valid and binding on the respondent.
14. Under the settlement deed the plaintiff-respondent was given A schedule properties and E schedule debts and the first defendant was given B schedule properties and F schedule debts. The plaintiff-respondent in the present suit has claimed possession of B schedule properties and past and future mesne profits. The learned Subordinate Judge has given a decree to her for possession and mesne profits both past and future, having held that the settlement deed was invalid and not binding. We have disagreed with the view of the learned Subordinate Judge and have held the settlement deed to be binding. According to the settlement deed, the B schedule property is given to defendant 1. The plaintiff-respondent therefore cannot claim possession and profits either past or future so far as this schedule property is concerned, and her suit would stand dismissed.
15. In the result, Appeal No. 159 of 1952 of the second defendant is allowed and the suit of the plaintiff (1st respondent) is dismissed.
16. We now proceed to consider Appeal No. 167 of 1952 filed on behalf of the plaintiff in the Same suit. This appeal may be disposed of without going into the merits of the case. In Appeal No. 159/. 52 we have held that the settlement deed of 2-2-1942 is valid and binding. This plaintiff is a party to the settlement deed and she has been given the C schedule property without any liability to discharge debts. When the settlement deed is held valid, the question whether the will is genuine or not, does not arise for consideration.
17. In the result, the suit of the plaintiff would stand dismissed and the appeal would be accordingly disposed of.
18. Appeal No, 159 of 1952 is allowed with costs throughout, the judgment and decree of the Subordinate Judge is set aside and the plaintiff's suit is dismissed.
19. Appeal No. 167 of 1952 is dismissed without costs. Plaintiff shall pay the Court-fee payable by the 2nd defendant to the Government.
20. These appeals having been set down this day for being mentioned the Court made the following :
ORDER
21. It is represented to us that we have not considered another point raised by the plaintiff, namely, that the appeal was filed only at the instance of the 2nd defendant and therefore the benefit of the decree should go only to the third defendant and not to the other defendants. This argument ignores the provisions of Order 41, Rule 4 of the Civil Procedure Code. The 2nd defendant preferred the appeal against the entire subject-matter of the suit and the grounds were common to all the defendants; and all the other defendants were made respondents to the appeal. In the circumstances, we reversed the decree in favour of all the defendants.