NIDAMARTHU BALASURYA BHEEMARAJU Vs. CHANGATI MRUTYANJAYUDU

JUDGEMENT

(1.) The facts of this second appeal may be stated as follows: Bhujanga Rao and Veeresalingam were two cousins being grandsons of two brothers. They had a number of family lands which they were enjoying in common, the lands not being divided by metes and hounds but they were divided in interest and Bhujanga Rao was living in distant places and Veeresalingam was managing the family lands. Bhujanga Rao died in 1885. Before his death he left a will dated 24 December 1884 by which he gave his share of the property to his daughter Mahalakshmamma for life and after her death to his grandson the present plaintiff who was the son of another daughter of his, Kanakamma. After Bhujanga Rao's death apparently the joint possession and enjoyment continued. Veeresalingam died in 1896 leaving the defendant his son a boy of 13. The lands were being leased by the defendant's maternal uncle up to 1905 when the defendant refused to give Mahalakshmamma her share of the property. Then she filed O.S. No. 11 of 1905 to recover her share of the property. The plaint in that suit is now Ex. B. The written statement in that suit is not filed. The suit was compromised. Under this compromise Mahalakshmamma was given half-share of all the family lands except in the suit land which was wholly given away to the defendant. The draft of this compromise is Ex. 2 and Ex. 4 is a public copy of the petition filed in Court. Under Clause 1 of this compromise the suit land was wholly given away to defendant 1. Ex. 2 seems to be in the handwriting of the present plaintiff. There is a decree in terms of the compromise. Mahalakshamamma died on 22 August, 1922. The present suit was brought by the plaintiff in December 1923 to recover half of the suit land from the defendant on the basis of Bhujanga Rao's will. Both the lower Courts have given a decree to the plaintiff. The defendant appeals.

(2.) Three points have been argued before me. The first is that the plaintiff is estopped from claiming the suit land as he was managing the litigation of 1905 on behalf of Mahalakshmamma, as he brought about the compromise and as he knew of it and actually wrote the draft Ex. 2. In support of this contention Mr. Kameswara Rao, the learned advocate for the appellant relied on Savage V/s. Foster 88 E.R. 299, and other cases to be mentioned presently. In the case of Savage v. Foster 88 E.R. 299, the person on whom the land was settled namely Williams did not know that Margaret had only a life interest and Mrs. Poster led him to believe that Margaret was competent to alienate the land. In the present case the defendant knew the contents of the will and he admits this in his deposition, and therefore there is no question of his being made to believe in the title of Mahalakshmamma by the conduct of the present plaintiff. But apart from this in that case Williams entered into a marriage alliance on account of the marriage settlement. But in this case there is nothing which the defendant did to his detriment on account of his. belief. The decision in Savage V/s. Foster 88 E.R. 299, was distinguished on the ground mentioned in Nicholl V/s. Jones [1867] 3 Eq. 709. Vice Chancellor Page says: Such was the case of Savage V/s. Foster where a married woman, knowing that arrangements as to her property were being made, stood by, while the person making those arrangements did not know her position, but supposed that he was dealing with a person competent to deal with the whole estate etc.

(3.) The next case relied on by the learned advocate for the appellant is Ananda Chandra Sen V/s. Parbati Nath Sen [1906] 4 C.L.J. 198, at p. 207. There one of the joint owners used the land in excess of his rights to the knowledge of the other and the other stood by, and it was held that he was bound by his implied assent and the decision in De Bussche V/s. Alt [1878] 8 Ch. D. 286, at p. 314, was cited in support of the conclusion. In the present case we have not got any user of the land to the detriment of the real owner. In De Bussche V/s. Alt [1878] 8 Ch. D. 286 the doctrine of estoppel is enunciated as follows: If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed he cannot afterwards be heard to complain of the act.