RAM DAYAL Vs. MITHOO LAL

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for possession of a zemindari share belonging to one Nand Ram as purchaser of the property from the reversioner of Nand Rani. It appears that Nand Ram died some time ago leaving a widow Musammat Gaura and a brother's daughter Musammat Chunna. On the 16 of October 1916 Musammat Gaura made a gift of the property in dispute to her husband's brother's daughter Musammat Chunna. Gaura died in October 1919 and Manbhawan was at that time the next reversioner to the estate of Nand Ram. He has sold the property in dispute to the plaintiff. Musammat Chunna has also died and her husband, the defendant No. 1, Muthu Lal, is in possession of the property. The plaintiff now brings the suit for possession. The points taken in defence were (1) that the gift by Musammat Gaura was in pursuance of the Will of her husband Nand Ram, and (2) that Manbhawan had assented to the gift in mutation proceedings and taken Rs. 50 and that the plaintiff was, therefore, estopped from contesting the validity of the gift. The Trial Court found, in favour of defendant on both the points and dismissed the suit. On appeal by the plaintiff the lower Appellate Court has come to the conclusion that Nand Ram did not make any oral gift as alleged by the defendants but it confirmed the decree of the First Court on the ground that Manbhawan and his successor the plaintiff are estopped from pleading the invalidity of the gift because of the consent given in the mutation proceedings by Manbhawan.

(2.) THE plaintiff comes here in second appeal and his first contention is that no question of estoppel arose in the case and reliance is placed in the case of Rangasami Gounden V/s. Nachiappa Gounden 50 Ind. Cas. 498 : 17 A.L.J. 536 : 36 M.L.J. 493 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 42 M. 523 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 (R.C.). It is true that the consent of the body of reversioners would not validate a gift which is a transfer without consideration and the effect of the consent of the reversioners is only to show that the transfer was a valid one and might be taken to amount to this that the transfer was justified by necessity but this could only be in the case of transfers in which consideration passed. THE mere consent of a next reversioner to a gift, however, would not validate it, nor could the assent of the next reversioner amount to a relinquishment because he had no vested interest which could be relinquished. In this case the position of the defendant has not been altered by any act of the plaintiff. He was a gratuitous transferee and his position has not been changed for the worse because of any act of the plaintiff. THE lower Appellate Court was, therefore, wrong in holding that the plaintiff, the transferee from Manbhawan, is estopped from challenging the validity of the gift in (favour of the predecessor-in-title of defendant No. I. I, therefore, allow the appeal, set aside the decrees of the Courts below and decree the plaintiff's claim with costs in all Courts including in this Court fees on the higher scale.