ALAMELU AMMAL Vs. BALU AMMAL

JUDGEMENT

(1.) The plaintiffs are the appellants. They are two out of the three daughters of one Sambasiva Aiyar who died in 1880. The 1st defendant is the daughter and heir of one Subbammal who is now dead and who was also a daughter of Sambasiva Aiyar like the two plaintiffs. The mother of the plaintiffs and of Subbammal died in 1899 having enjoyed a widow s estate in the properties. Shortly before her death however, she executed a will treating the properties as her absolute properties and bequeathing the lands described in the plaint B schedule absolutely to her three daughters namely, the two plaintiffs and Subbammal. The daughters accordingly divided the B schedule properties into 3 equal shares by an oral division, shortly alter their mother s death purporting to take each one-third absolutely according to the will of their mother. Subbammal died in 1908 and her one-third share (the plaint schedule property) was taken possession of by her daughter (the 1st defendant) as her heir. Now the two plaintiffs have brought the suit out of which this second appeal has arisen on the allegation that the plaint schedule property was taken by their sister Subbammal as heir of their father, Sambasiva Aiyar after the death of their mother in 1899 and that that property which the 1st defendant has so taken possession of belongs to them after the death of their sister Subbammal. (The plaintiffs in their plaint dishonestly suppressed the fact that Subbammal had been enjoying the plaint one-third share separately under a partition to which the plaintiffs were parties and they made a false allegation that the plaintiff s two shares and Subbammal s shares were all enjoyed according to the convenience of the three sisters without any permanent division by the plaintiffs and their sister Subbammal till the latter s death).

(2.) The Lower Courts dismissed the plaintiff s suit on the ground that the plaintiffs are estopped from claiming title! to possession of this one-third share as heirs of their father because they and their sister purported to take the land under the will of their mother which gave one-third absolutely to Subbaramal. The Subordinate Judge relied upon the English case of Dalton v. Fitzgerald (1897) 2 Ch. D. 86, in support of his view, The case Dalton v. Fitzgerald (1897) 2 Ch. D. 86, and the prior case of Paine v. Jones (1874) 18 Eq. 320, were considered in Rupchund Ghosh v. Sarveshwar Chandra Chandra (1906) I.L.R. 33 C. 915, Rampini J. says : " In Dalton v. Fitzgerald (1897) I.L.R. 25 C. 210, the defendant obtained possession of certain land from a grantor, who had no title to it. By means of that possession, he was able to acquire a good title by possession against the true owner. Hence, he was held to be estopped as against the grantor and his remainder men from disputing the validity of the deed of grant." Thus the case of Dalton v. Fitzgerald (1897) I.L.R. 25 C. 210 is authority only for the proposition that if possession is acquired under a particular grant and could not be traced to any other title, then as regards that particular property of which possession was so obtained the grantee cannot claim the benefit of the English Statute of Limitations i.e., a claim to acquire an absolute title by adverse possession so as to deprive|the remaindermen who were granted rights in remainder under the same grant under which the life tenant secured possession and entered into possession as life tenant. As Rampini, J. says " the rule of estoppel laid down in Bigelow would seem to be that the estoppel only exists so long as the grantee claims under the title of his grantor alone." Woodroffe, J. says "that if a grantee,: assert no other right or title than that from a common grantor, he will be precluded as against another grantor under the same instrument from denying that his grantor had a title, when he conveyed." See also Bigelow on Estoppel 6th Edition pp. 376 and 377 as to the limits within which the doctrine of estoppel laid down in Dalton v. Fitzgerald (1897) I.L.R. 25 C. 210 should be confined.

(3.) Without going so far as was said in Rupchand Ghosh v. Sarveswar Chandra Chandra (1906) I.L.R. 33 C. 915 that Section 115 of the Evidence; Act is exhaustive on the law of estoppel to be applied by the Courts in India, I am of opinion that Dalton v. Fitzgerald (1897) 2 Ch. D. 86 should not be extended beyond what is absolutely necessary to support the decision on the facts of that particular case. So confining it, the present case is clearly distinguishable because (1) the plaintiffs do not rely upon the possession got under the will to claim the benefit of any statute of limitations giving the possessor absolute title, (2) the plaintiffs do not claim a higher right to the two-third share which was granted to them by the will and of which they are in possession, than the right which was so given by the will but their claim relates to the other one-third share to which no right was granted to them by the will, (3) neither their title nor their possession as regards the two-third share, need be traced to the interest in the will at all but it can be traced to their undoubted right as legal heirs of their father. The decisions of the Lower Courts cannot therefore be supported on the ground on which they have based the said decisions. Mr. C.V. Anantakrishna Aiyar, Vakil for the Respondents argued that the Lower Court s decisions could be supported on two other grounds: (a) that the plaintiffs are estopped by Section 115 of the Evidence Act from claiming title to the one-third share; (b) that in any event, as the plaintiffs and Subbammal effected partition on the understanding that Subbammal should enjoy the property without any right in the plaintiffs to take her one-third share from her heirs or her assignees on her death, the plaintiffs cannot rely on their right of survivorship which they relinquished by the partition arrangement. As regards the first contention, I do not think there is anything on the record from which it could be established that the plaintiff s by their conduct induced Subbammal to do anything to her own detriment. Subbammal and the plaintiffs all allowed their mother to execute the will and they all took under that will. So representation was made by the plaintiffs to Subbammal or by Subbammal to the plaintiffs. Either all of them were ignorant of their real rights or all of them knew their real rights and chose to act according to their ignorance or in spite of their knowledge as the case may be. This contention therefore fails. The second contention involves more difficult questions. It must now be taken as settled that a partition of immoveable properties of whatever value can be effected without any registered instrument in writing as it is not an exchange, sale, mortgage or lease. (See Gyannessa v. Mobara Kannessa (1897) I.L.R. 25 C. 210, which was decided by Amir Alt and Macpherson JJ.) I feel bound by the authority of the decision of the eminent judges who took part in that case as that decision seems not to have been questioned in any other High Court. In Satya Kumar Banerjee v. Satya Kripal Banerjee (1910) 10 C.L.J. 503, the decision in Gyanessa v. Mobara Kannessa (1897) I.L.R. 25 C. 210, was followed and reference is further made to the Privy Council case in Rewan Persad v. Mussumat Radha Beeby (1860) 1 M.I.A. 137, But the Privy Council cage had been decided long before the Transfer of Property Act came into force. In Subramania Aiyar v. Savitri Ammal (1908) 4 M.L.T. 354, it was held that if a partition was effected by an instrument in writing and if the property was of the statutory value, the deed of partition must be registered. But as pointed out in Satya Kumar Banerjee v. Satya Kripal Banerjee (1910) 10 C.L.J. 503, the case in Subramania Aiyar v. Savitri Ammal (1908) 4 M.L.T. 354, does not lay down that partition cannot be effected orally. As I said before, I am not prepared to dissent from the view that notwithstanding the Transfer of Property Act, a partition of immoveable property of whatever value may be effected by oral arrangement. In Arya Puttira v. Muthuhumarasami (1913) I.L.B. 37 M. 423, I have ventured to state that " all conveyances of ownership right in lands were intended to be brought under sales or gifts or exchanges and to be effected as a rule by registered instruments : and I also expressed the wish that the British Indian Legislature would pass an enactment making a registered writing indispensable for the validity of all settlements, partition agreements, and wills and authorities to adopt making very few exceptions in special cases (such as soldier s and sailor s will.) I took it for granted in that decision that it was too late to hold that partition agreements could be validly made only by registered instruments.