P L D 1952 Lahore 523 (PLP)

SHABIR AHMAD, J.‑On the 11th of April 1930, Mst. Zainab Bibi, widow of Pir Muhammad, and her brother‑in‑law Ghulam Muhammad, sold land measuring 40 kanals to Hayat Muhammad for a sum of Rs. 1,

400. With regard to the above sale Muhammad Khan and Ahmad Khan, who claimed to be collaterals of Ghulam Muhammad and of the husband of Mst. Zainab Bibi, brought the usual suit under custom on the 12th of May 1936, to have it declared that the sale was with out consideration and legal necessity and would not affect their reversionary rights. This suit was compromised on the 11th of November 1936, the operative part of the compromise being as follows :‑ "A decree for declaration is passed in favour of the plaintiffs against the defendants to the effect that the plaintiff are the owners of the land in suit and will pay Rs. 526 to Hayat Muhammad (defendant No. 1 in the suit) by the 1st of December 1936. If the above sum is not paid, the suit of the plaintiffs will stand dismissed. In the former case the parties shall bear their own costs, but in the latter case the plaintiffs shall pay the costs of the defendants. The plaintiffs shall be entitled to redeem the property which was mortgaged". The sum of Rs. 526 mentioned in the above compromise deed not having been paid by Muhammad Khan and Ahmad Khan, their suit was dismissed in terms of the compromise. On the 19th of January 1949, Ali, son of Jalal Din, claim ing to be a collateral of Ghulam Muhammad, the first vendor, and of the husband of Mst. Zainab Bibi, the second vendor, brought the suit, out of which this second appeal has arisen, on the ground that the sale by Ghulam Muhammad and Mst. Zainab Bibi was not binding on the reversionary interests of the plaintiff. In paragraph No. 5 of the plaint a mention of the suit brought by Muhammad Khan and Ahmad' Khan was also made, it being added that as Muhammad Khan and Ahmad Khan had not put in Court the money which, under the compromise, they had to put in, their suit was dismissed, but they remained in possession of the property. The plaint went on to say that Hayat Muhammad, the alienee under the sale deed dated the 11th of April 1930, had trans ferred the property to Khushi Muhammad, who was impleaded as one of the five defendants. The suit was resisted on a, number of grounds, one of which was that the decision of the suit brought by Muhammad Khan and Ahmad Khan acted as res judicata and barred the present suit. Because of this plea, the trial judge framed a preliminary issue, which was in the following terms :‑ "Whether the suit is barred under section 11, Civil Procedure Code"? The trial judge held that the decision in the former suit attracted the provisions of section 11 of the Code of Civil Procedure and barred the present suit. Ali went up in appeal to the Court of the District Judge, Gujranwala, but having remained unsuccessful in that Court, has presented a second appeal. The Courts below have held that because the suit by Muhammad Khan and Ahmad Khan was brought in a repre sentative capacity and a decree passed therein would have enured for the benefit of all the collaterals, the dismissal of the suit must also go against all the collaterals and attract the provisions of section 11, Civil P. C. It was noticed by the Courts below that it was not specifically alleged in the plaint or the evidence that Muhammad Khan and Ahmad Khan, who were the plaintiffs in the former, suit, had acted mala fide in entering into the compromise, and relying on 37 Punjab Record 1907, they held that the decision in the former suit must bar the present suit. The learned counsel for the appellant urged that the finding of the Courts below on the preliminary issue was wrong as the compromise arrived at by Muhammad Khan and Ahmad Khan was not and could not be considered to be for the benefit of any one but themselves and if they did not comply with the terms of the compromise, the rights of the other reversioners, and especially of the plaintiff‑appellant, who was a minor at the time of the compromise, could not be affected. The learned counsel for the respondent, on the other hand, urged that the Courts below having found that Muhammad Khan and Ahmad Khan, the plaintiffs in the for mer suit, had not been proved to have acted mala fide, the dismissal of their suit could not but result in depriving the plaintiff of the right to bring a suit, because if each rever sioner were allowed to bring a separate suit, with regard to the alienation, the alienee might have to face a large number of suits, in some of which the decision might go counter to the decision in others. Section 8 of the Punjab Limitation (Custom) Act (I of 1920) enacts that when any person obtains a decree declaring that an alienation of ancestral land is not binding on him according to custom, the decree shall enure for the benefit of all persons having an existing right to impeach the alienation. The section does not mention what the effect of an adverse decision in such a suit is to be but it is well‑settled that an adverse decision is also binding on the other reversioners. The binding nature of an adverse decision in such a suit must, however, on general principles, be subject to the condition that the institution and the conduct of the suit was bona fide for the benefit not only of the plaintiff but of all reversioners. The fact that a suit has been compromised is not by itself sufficient for holding that the plaintiff was not acting bona fide as each case has to be examined in the light of its own facts. In the present case, the compromise, the operative part of which has been reproduced above, did not deal with the matter that arose in the suit. As I read it, the compromise amounted to a transfer by Hayat Muhammad, the original alienee, in favour of Muhammad Khan and Ahmad Khan, the plaintiffs in the suit. The usual decree in a suit brought to challenge an alienation under custom is that the reversionary rights of the plaintiff would not be affected by the alienation after the termination of the interest of the alienor, but the compromise under consideration makes no mention of those rights at all. The terms of the compromise would show that Muhammad Khan and Ahmad Khan had given up the idea of fighting the case on the basis of their reversionary rights, and had, at any rate sought to obtain possession of the land much earlier than they would have otherwise got it. In these circumstances I would require strong evidence of the fact before holding that they were acting bona fide or in a repre sentative capacity when they entered into the compromise, the plain object of which was the obtaining for themselves alone a benefit which would not have accrued to them even in the event of complete success of their suit. By not paying the sum of Rs. 526 mentioned in the compromise within the specified period, Muhammad Khan and Ahmad Khan may have lost their own right to the property, but it would be a startling proposition if it were held that by their default they had prejudiced the rights of any of the other reversioners. When a person who purports to be suing in a representative capacity compromises the suit with the object of getting for himself a benefit which the decree of the Court would not have given to him if he were successful, he can no longer be deemed to be acting in a representative capacity and if he commits a default in carrying out the terms of the compromise, the other persons whom he is to be deemed to have been representing cannot be made to pay the penalty of his default about a matter entirely out of the ordinary scope of the suit which in its inception may have been of a representive character. The learned counsel for the respondents urged that the decree passed on compromise was not materially different from the decree which would have been passed if there had been no compromise and, therefore, the decree barred the present suit. I have said already that the compromise resulted in a decree which would not have been passed if the Courts had been left to deal with the matter but even if the contention of the learned counsel for the respondents be accepted, the result will not be different in any material respect. As already men tioned the usual decree in suits of the type brought by Muhammad Khan and Ahmad Khan is that the impugned alienation shall not affect the reversionary interests of the plaintiff after the termination of the interest of the alienor. By virtue of section 8 of Punjab Limitation (Custom) Act (I of 1920) such a decree, when obtained, enures for the benefit of all the persons entitled to impeach the alienation and, after such a decree, a suit for possession may be brought within three years of the termination of the interest of the alienor or of the declaratory decree whichever is later, in accordance with Article 2 (b) of the Schedule appended to that Act. By the compromise Muhammad Khan and Ahmad Khan obtained the right to get possession of the property by paying Rs. 526 in about three weeks of the compromise, and if the decree be deemed to be the usual decree in suits based on custom, it was hardly open to them to curtail the period of limitation allowed to the other reversioners even if it be assumed that they could do so with regard to their own rights. A number of judicial decisions were cited by the counsel for the parties, but none of them, except Mst. Mohan v. Mst. Rah and other A I R 1935 Lah. 505, has any relevancy. In that case, Agha Haider, J. had to consider the question whether the decision in a suit by a reversioner which was originally for a declaration, but was changed into one for possession on the death of the alienor could operate as res judicata with regard to a suit brought by another reversioner, and is reported at page 507 to have remarked as follows:‑ "These pleadings show that Bhulla was undoubtedly claim ing for himself only and for nobody else. In fact when on the death of Mst. Tabo, he followed his declaratory suit with a suit for possession he claimed the whole property for himself thereby excluding the title of any other collateral. This being so and in view of the pleadings it cannot be said that Bhulla must be deemed to have been litigating on behalf of any other reversioner or collateral. On the other hand there are clear indications that he was suing for him self and denying by clear implication the title of any other collateral

I, therefore, hold that the decision in Bhulla's suit does not operate as res judicata". In the present case no doubt the plaint would show that Muhammad Khan and Ahmad Khan had brought the suit in a representative capacity, but I am of the view that the com promise which is sought to be used as a bar to the present suit cannot be considered to have been entered into bona fide or in a representative capacity. I would, therefore, holding that the suit brought by Ali was not barred, accept the appeal and remand the case to the trial Court for decision on merits. Costs incurred so far will be costs in the cause. CORNELIUS, J.‑I agree with the order proposed by my learned brother, but as the appeal raises a matter which, so far as we have been able to ascertain, with the aid of learned counsel for the parties, has not previously been adjudicated upon directly, I think it is desirable that I should add a few observations of my own. Briefly, the question for decision is whether the dismissal of a suit brought by certain collaterals of the alienors under the customary law to contest an alienation of ancestral pro perty, such dismissal resulting from a compromise whereby title in the suit land was passed to the contestants, subject to a condition subsequent, upon the failure of which, the suit was dismissed, operates as res judicata so as to bar a later suit by another collateral, challenging the same alienation. It is well settled that such suits are of a representative character. They are founded upon the common injury to the reversionary rights in the estate resulting from the transaction. For reliev ing the estate of the injurious effect of such transaction, there is identity of interest among the general body of the rever sioners. Consequently, any reversioner who sues for a declaration to procure such relief does so as representing the whole reversion, and prima facie, a decision in his suit, whe ther favourable or unfavourable, would appear to bind all the other reversioners. It is clear also that this result may be avoided in certain circumstances. If, for example, there be fraud or collusion on the part of the collateral first suing, resulting in dismissal of his suit, such dismissal will not by itself operate to bar a sub sequent suit by other collaterals. The principle of avoidance on the ground of mala fides may be derived from Article 67 of Rattigan s Digest of the Customary Law which reads as follows:‑ "The proper person to object to an alienation is the nearest reversionary heir. But when he happens to be a minor, or it is shown that he is in collusion with the alienor, or that he has refused without sufficient cause to institute proceedings, or has precluded himself by his own act or conduct from suing, or has concurred in the alienation or the act alleged to be wrongful, the next reversioner is entitled to maintain the action". Although this Article expressly deals with the locus standi of the several reversioners inter se to impeach an alienation or other act affecting the reversionary interest, yet, to the extent that it provides for matters which need not necessarily proceed the institution of the suit, it seems to me that it can very pro perly be applied even in cases where a suit has been instituted. Thus, collusion between the collateral suing and the alienor, or concurrence by such collateral in the alienation or the act alleged to be wrongful, may occur in the course of proceedings, and where the result is that the suit is dismissed, it would be hard to deny the right of impeaching the alienation or other act complained of to other collaterals who were not, parties to the first suit. In the present case, no mala fides, of the nature of fraud or collusion, is either alleged in the pleadings or made to appear in the evidence. Yet, it is clear that the earlier case was not fought out to the end, and that it was lost in the course of an attempt by the then plaintiffs to gain an immediate advantage for themselves, viz., present title in the alienated land, which was wholly beyond and in excess of any relief open to the reversioners at the time. It is plainly inequitable that the reversion should be injured by such an eventuality, resulting from an effort at private self‑aggrandisement by two members of the reversionary body. Although there is no reported precedent directly applicable, it seems to me that a principle may be drawn from certain earlier cases under the Hindu Law enabling the proper dispensation of justice and equity in this case, and other similar cases. Varamma v. Gopaladasaya I L R 31 Mad. 659 is a Full Bench decision of the Madras High Court relating to a suit brought by reversioners to set aside an alienation by a Hindu widow. It was held by the Full Bench, following the decisions of the Judicial Committee cited as IJenkatanarayana Pillai v. Subbammal I L R 38 Mad. 306 and Janaki Ammal v. Naraya nasami Aiyer I L R 39 Mad. 634, that such a suit is a repre sentative suit on behalf of all the reversioners then existing or thereafter to be borne and all of them have but a single cause of action which arises on the date of the alienation. In that case, twelve years had been allowed to elapse after the date of the alienation, without any suit having been brought, and the question arose whether a suit, brought by a reversioner after the expiry of that period was competent. In his opinion on this point Seshagiri Ayyar, J., wade the following observation: "The next point fur consideration is granted it is a joint right and that any conclusion come to in a suit brought by one of the reversioners will be binding upon the others also, does it follow that the failure to institute a suit by the reversioners precludes others from suing for such a relief. Section 11, Explanation 6 to the Civil Procedure Code, enunciates the principle of res judicata where action has been brought to vindicate a right common to the plaintiff and to others . . . . . . I hold with the learned Chief Justice that it is impossible to resist the conclusion that if the right litigated is a common right and if that litigation has been honestly conducted, the other reversioners are affected by the bar of res judicata. This is the logical result of the decision of the Judicial Committee . . . . . ." I have italicised the words in the above passage, which are relevant for the present purpose, and would lay particular stress on the words "if that litigation has been honestly con ducted", which I would interpret to mean‑if it has been conducted bona fide, and with due care and caution in the interests of the estate. On behalf of the respondents reliance was placed on a Division Bench judgment of this Court published as Mai Dhan v. Mansa Ram A I R 1927 Lah. 835, where, in a suit brought by a reversioner under Hindu Law, it was held that the dis missal of an earlier suit by a nearer reversioner binds all other reversioners; unless mala fides can be established. The judg ment purports to rely; for this proposition, upon an earlier judgment of this Court, viz., Khair Muhammad v. Umar Din A I R 1925 Lah. 89, but on reference to the latter judgment, it is found to contain no observation to this effect. In my opinion, and speaking with great respect, while, as has been seen, mala fides affecting the first suit will always avoid its effect upon a subsequent suit, yet the requirement of proof of mala fides in all cases where an effort is made by the reversioners to undo a reverse sustained by one of their number in an earlier suit, is probably too high to ensure the safety of legal rights. A simple case in which the reversioner first suing may jeopar dize the interests of the reversionary body is that in which a claim in excess of that admissible under customary law, or a personal claim, is pursued either in complete or partial substi tution of the right under custom or in addition to such right, and on the failure of such ulterior claim, the entire right is disallowed. It would be, in my view, an undeserved hardship on the remaining members of the reversionary body if their rights were deemed to be entirely extinguished by the fate of the exaggerated claim made either ill advisedly or from greed of gain, by one of their number. Assistance may perhaps be derived, in estimating the extent of the liability carried for the doings of one reversioner, by all the other reversioners, from the principle of agency in the law of contract. Where an agent acts beyond his authority, the principle is not ordinarily bound by such acts unless he has by his words or conduct induced third parties to believe that the agent was acting within his authority. In the absence of ratification by the principle, such acts will not bind him. Although the parallel is by no means close, I think the same principle may be extended to the case of a reversioner acting in a representative capacity in respect of a suit under custom. The reliefs available to such a reversioner are the same as the entire body of reversioners may claim and are well known to the opposite parties, namely, the alienor, the alienee and their respective representatives. Where a rever sioner suing in this form, makes a claim which is plainly beyond the scope of the relief available under custom, or obtains for himself any such ulterior relief, it is not open to the main opponent, namely, the alienee, to claim that the result of the suit binds the entire reversionary body, when another member of that body again sues to avoid the alienation. For, in making such an ulterior claim, on which ex hypothesi the suit is eventu ally wrecked, the reversioner first suing repudiates his repre sentative capacity, and his further acts and their consequences cannot bind his deemed principals, namely the entire rever sionary body. Other cases may perhaps also be cited of a similar nature, to illustrate the danger attending the adoption of the narrow principle that nothing but mala fides on the part of the rever sioner first suing will avoid the adverse effect of the decision in such suit upon the reversionary body as a whole. For the purposes of the present case, however, it is unnecessary to seek such further illustrations. I proceed, therefore, to con sider whether the fact that the first suit is dismissed on the basis of a compromise in any way affects the rights of the remaining reversioners. Although a compromise necessarily means that the parties have ceased to be at arms length from each other, in other words that there is a cessation of contest, and that eventually a consensus has been reached, it is not possible to assume that in all cases a decree resulting from a compromise must be tainted with collusion and consequently does not bind the reversioner. A compromise decree may still be a fair decree, and perhaps more favourable to the reversioner than a decree obtained on contest. Consequently, no general rule can be laid down to the effect that no compromise binds a reversioner, and it will be necessary in every case to consider the result of the com promise with reference to the general test indicated above, namely, was it arrived at bona fide and with due care and cau tion in the interests of the estate? Muhammad Malik v. Ali Muhammad 1938 P L R 108 is a case in which one of the reversioners, after a certain amount of contest in a suit brought by him to contest an alienation by his father, eventually was satisfied that the sale was valid for consideration and necessity, and a result of a compromise, allowed his suit to be dismissed and on the same day purchased the land from the alienee pay ing a premium of Rs. 400 over the alienee's purchase price of Rs. 2,

600. It was held that the dismissal of his suit was binding on the other reversioners. In a case arising under Hindu Law, where a female heiress in possession of the estate and as such representing the estate, had entered into a compromise out of Court in a suit affecting the estate, the Calcutta High Court has held that such a compromise is valid and binds the rever sioners if it is a fair and bona fide compromise made by the fe male owner for the benefit of the estate, and not merely for her personal advantage; Mohendra Nath Biswas v. Shamsunnessa Khatun 27 I C 954 following Khuni Lal v. Gobinda Krishna Tlarain 38 1 A 87 and Hiran Bibi v. Sohan Bibi 24 1 C

309. That principle may, in my opinion, validly be extended to cover cases under the Customary Law where the representation is not of the estate but of the body of the reversioners, and the suit is brought by one of that body. This is, of course, based on the assumption that in effecting the compromise nothing has been done which prejudices the representative character of the suit. A compromise in a suit may relate to matters and issues falling outside the four corners of the suit, and while ~it may be binding as between the parties thereto in all its aspects, it cannot be denied that if some of those aspects are outside the purview of custom or other branch of law under which the representative suit has been brought, it would be difficult to hold that the entire class or body of persons whom the plaintiff represents is bound by the result of the compromise, so far as it lies outside the scope of the suit as originally brought. Abdur Rahim v. Muhammad Barkat Ali 55 I A 96 is an instance of a case where in a repre sentative suit brought with the sanction of the Advocate --General under section 92 of the Civil Procedure Code, to assert a public right, certain parties had been added as well as certain claims, by way of amendment of the plaint, without obtaining the sanction of the Advocate‑General to such amend ments. The suit ended in a compromise whereby a part of the rights which had originally been claimed as public rights were relinquished in favour of the newly‑added defendants as rights belonging personally to them. It was held by the Judicial Committee that the compromise, albit binding as between the contesting parties, could not bind the members of the public on whose behalf the plaintiffs had sued Mst. Mohan v. Mst. Rali A I R 1935 Lah. 505 a case decided by Agha Haider, J., from whose judgment my learned brother has reproduced an extract in his judgment, is on illustration of a case which, although in form a suit by a reversioner claiming possession of an estate upon the death of a limited owner, and therefore prima facie a representative suit, was found on closer examination to be in fact a suit brought to assert a separate and individual claim, and consequently not to be a representative suit for the purpo ses of application of the rule of res judicata. Muhammad Malik v. Ali Muhammad 1938 P L R 108 to which I have already referred: may be regarded as authority for the view that where a reversioner in a representative suit succeeds by compromise in obtaining a relief which is outside the scope of the suit, by payment of consideration, the advantage he thus gets enures to his exclusive advantage, and the other reversioners cannot in law claim to have a share in it. When the present case is examined in the light of these considerations, it becomes plain that the result of the first declaratory suit cannot bind the other reversioners. For, the reversioner then suing, by means of a compromise, had actually obtained for himself an advantage entirely outside the scope of the suit as framed. In the suit, he could at best have obtained a declaration that the alienation would not affect the rights of himself and other members of the reversionary body. Such a declaration may or may not have resulted in concrete advan tage to the plaintiff or any reversioner, depending upon contin gencies affecting the succession to the property. That is to say, even if, when the alienors die, and the right to possession of the alienated property accrues, it may not be the plaintiff or any other reversioner in existence at the time of the suit who will be able to enforce such right. Therefore, when by the compro mise in the first suit, the then plaintiffs succeeded in obtaining a declaration that they were the present owners of the suit land, they had acquired, as a result of compromise, a right entirely outside that for which they had originally sued or could sue under custom. Quite clearly, they cannot be held to have either sought or gained this right in a representative capacity. They gained the declaration of ownership in their favour purely in an individual capacity, and if they had succeeded in satisfy ing the condition subsequent, i.e., had paid the purchase price within the stipulated time, there seems little doubt that they could have held the land as against the body of the proprietors, subject only to disturbance of title in case any member of the reversionary body sued successfully to avoid the original alien ation. That will sufficiently indicate that one possible result of the compromise at least could not be pleaded as res judicata against the other reversioners. The alternative was the dismis sal of the suit, in case they failed to satisfy the condition subsequent, and this was in the nature of a penalty, for by non satisfaction they were already losing the title awarded to them by the decree. This was the alternative which in the event, took effect, and the question is whether the dismissal of the suit in these circumstances constitutes res judicata against the other reversioners. In my view there are several reasons against the view taken by the Courts below in this respect. The plaintiffs in the first case by negotiating for present title, had repudiated their cha racter as representatives of the reversionary body, and there fore all proceedings in the suit from the time of the compromise onwards would not be binding on the reversioners. Moreover, in thus negotiating for their own advantage, and, as it were gambling away the right of suit on the chance of their being able to fulfil an onerous condition, namely, the payment of Rs. 526 within twenty days, the then plaintiffs cannot be regarded as having acted with due and proper care for the interests of the estate. A compromise in the circumstances cannot be regarded as a fair and bona fide compromise made for the protection or benefit of the estate. Consequently, it is note binding on the general body of the reversioners. A. H. Appeal accepted.