SRI KAKARALAPUDI LAKSHMI NARAYANA JAGANADHA RAJU GARU Vs. SRI RAJAH KANDUKURI VEERA SARABHA VARAHA LAKSHMI NARA SIMMA VENKATA JOGI BALASURYA PRASADA RAO GARU

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of Ganjam dismissing a suit brought by the plaintiff for specific performance of a contract entered into on the 11th May 1894 by the defendants and their father, who were at that time reversioners of the Urlam estate, by which they undertook to sell the estate to the plaintiff and to execute a proper sale- deed in his favour when the time came for putting him in possession. The learned District Judge, now Mr. Justice Kumaraswami Sastri, has dismissed the suit, on the ground that such a contract by reversioners is prohibited by Section 6 of the Transfer of Property Act and is also void under Section 23 of the Indian Contract Act as tending to defeat the provisions of law contained in the aforesaid section of the Transfer of Property Act. The question is undoubtedly one of great importance, and Mr. S. Srinivasa Iyengar has contended forcibly before us that contracts of this kind were enforceable both in England and in India before the Transfer of Property Act and that Section 6, was not intended to affect them.

(2.) There can be no doubt that before the Act, in England and in India, a mere chance of succeeding to an estate was a bare possibility incapable of assignment: Jones v. Roe (1789) 3 T.R. 88 at p. 93 : 100 E.R. 470 : 1 R.R. 656 In re: Parsons Stockley v. Parsons (1890) 45 Ch. D. 51 : 59 L.J. Ch. 666 : 62 L.T. 929 : 38 W.R. 712 and Ram Chandra Tantra Das v. Dharmo Narayan Chuckerbutty 7 B.L.R. 341 : 15 W.R. (F.B.) 17 where it was held that the interest of an heir under the Hindu Law expectant on the death of a widow in possession was not properly liable to attachment and sale in execution. It was nevertheless held in England that in the case of such expectancies equity would enforce a contract to convey the estate when it fell in. This was decided in the time of Charles I in Wiseman v. Roper (1645) 1 Ch. Rep. 158 and notwithstanding Certain observations of Lord Eldon in Curleton v. Leighton (1805) 3 Mer. 667 : 36 E.R. 255 and Harwood v. Tooke (1812) 2 Sim. 192 : 29 E.R. 81 : 57 E.R. 761 was affirmed in Wethered v. Wethered (1828) Z Sim. 183 : 29 E.R. 77 : 57 E.R. 757 and Lyde v. Mynn (1833) 1 Myl. and K. 683 : Coop. T. Brough. 123 : 39 E.R. 839 : 36 E.R. 415 and has since been treated as settled law. Mr. Srinivasa Iyengar contends that the law in India was the same, and that the Transfer of Property Act has not made any difference and he refers to Raja Saheb Perhlad Sein v. Baboo Budhoo Singh 2 B.L.R. Ill at p. 117 : 12 W.R. (P.C.) 6 : 12 M.I.A. 275 : 2 Suth. P.C.J. 225 : 2 Sar. P.C.J. 429 : 20 E.R. 343 where their Lordships with reference to such an expectancy speak of a contract to be performed in future and upon the happening of a certain contingency of which the purchaser may claim a specific performance, if he comes into Court showing he has done all he was bound to do." The other side refer to a passage in Musammat Oodey Koowar v. Musammat Ladoo 13 M.I.A. 585 at p. 598 : 15 W.E. (P.C.) 16 : 6 B.L.B. 283 : 2 Suth. P.C.J. 388 : 2 Sar. P.C.J. 628 : 20 E.R. 669 where their Lordships observed that a certain petition by which the petitioner renounced her claim to succeed on the death of a kinsman did not operate as a conveyance or a contract, first, because the petitioner had at the time no interest in the property and secondly, because the petitioner did not show that she was contemplating any conveyance, but these observations did not amount to a direct ruling as to a contract to convey when the estate came into possession. It was apparetly with reference to this case that their Lordships observed in a passsage of an unreported judgment, cited in Bam Nirunjun Singh v. Prayag Singh 8 C. 138 : 10 C.L.R. 66 "that it went far to show that the principle of English Law, which allows a subsequently acquired interest to feed, as it is said, the estoppel, does not apply to Hindu conveyances." It was held by the Calcutta High Court in that cise, following the English authorities, that a contract between expectant heirs to divide the estate, when it fell in, in a particular way was enforceable, and this was treated as well established by Sir Charles Sargent in Gitabai v. Balaji Keshav 17 B. 232 at a time when the Transfer of Property Act had not been extended to Bombay. Lastly, in Nasir-ul-Haq v. Fyaz-ul-Rahman 9 Ind. Cas. 530 : 33 A. 457 : 8 A.L.J. 275 the learned Judges were of opinion that such contracts were not affected by the provisions of Section 6 citing the decision in Ram Nirunjun Singh v. Prayag Singh 8 C. 138 : 10 C.L.R. 66 which was before the passing of that Act, but the point was unnecessary for the decision.

(3.) It cannot be said that there is direct authority in India the other way, but the respondents rely on Sumsuddin v. Abdul Husein 31 B. 165 : 8 Bom. L.R. 781 and Dhoorjeti Subbayya v. Dhoorjeti Verikayya 30 M. 201 : 2 M.L.T. 184 as to the scope of Section 6 of the Transfer of Property Act. That section provides that "property of any kind may be transferred, except as otherwise provided by this Actor by any other law for the time being in force and that (a) the chance of a heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred." In the former case Jenkins, C.J., and Beaman, J., held a release by a Muhammadan woman of her expectancy of succeeding to a share of her father s estate was void as opposed to the provisions of the section and could not, as in England, be enforced in equity when the reversion fell into possession. In the later decision to which I was a party, it was held that a mortgage by an expectant heir of his chance of succession was void under Section 6 and could not be enforced by virtue of Section 43. This is in accordance with the observations of Lord Davey delivering the judgment of their Lordships in Sham Sundar Lal v. Achhan Kunwar 21 A. 71 at p. 80 : 25 I.A. 183 : 2 C.W.N. 729 and with the observations of their Lordships in the judgment cited in Sam Nirunjun Singh v. Prayag Singh 8 C. 138 : 10 C.L.R. 66. It is, however, contended by Mr. Srinivasa lyengar that these decisions , do not affect the present point and that in granting the specific performance the Court will not be giving effect to the equitable doctrine of feeding the estoppel, which he admits may be inapplicable, but merely enforcing a contract to do something in future which will not be illegal at the time it is done, viz., to convey the estate after it has fallen into possession.