SRI KAKARLAPUDI LAKSHMINARAYANA JAGANNADA RAJU GARU Vs. SRI RAJAH KANDUKURI VEERA SARABHA VARAH LAKSHMI NARASIMHA VENKATA JOGI BALASURYA PRASADA ROW GARU

JUDGEMENT

(1.) This is an appeal from a decree of the District Judge of Ganjam dismissing a suit brought by the plaintiff for the 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, 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 the law contained in the aforesaid section of the Transfer of Property Act. The question is undoubtedly one of great importance and Mr. S. Srinivasa Aiyangar has contended forcibly before us that contracts of this kind were enforceable both in England and in India before the Transfer of Propeity 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 (1881) I.L.R. 8 C. 138 In re Ramons (1892) I.L.R. 17 B. 232 and Rumachandra Tantra Das v. Dharmo Narayan Chucker burtty (1892) I.L.R. 17 B. 232 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. Con Roper (1645) Ch. Ref. 158 and notwithstanding certain observations of Lord Eldon in Carlton v. Leightot (1805) 3 Mer. 667 and Harwood v. Tooke (1812), 2 Sim. 192 was affirmed in Wethered v. Wethered (1812) 2 Sim. 183 and Lyde v. Mynn (1828) 1 Myl. & K. 683 and has since been treated as settled law. Mr. Srinivasa Aiyengar 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 2 B.L.R., 11 at page 117, 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 Mussamat Oodey Koowar v. Mt. Ladoo (1870) 13 M.I.A. 585 at 598 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 do not amount to a direct ruling as to a contract to convey when the estate came into possession. It was apparently with reference to this case that their Lordships observed in a passage of an unreported judgment cited in Ram Nirunjan Singh v. Prayag Singh (1881) I.L.R. 8 C. 138 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 case following the English authorities that a contract between the 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 (1892) I.L.R. 17 B. 232 at a time when the Transfer of Property Act had not been extended to Bombay.

(3.) Lastly in Nazir Ul Hag v. Faryaz-ul-Rahman (1911) I.L.R. 83 A. 457, the learned Judges were of opinion that such contracts were not affected by the provisions of Section 6 citing the decision in Bam Nirunjan Singh v. Prayag Singh (1881) I.L.E. 8 0. 138 which was before the passing of that Act, but the point was unnecessary for the decision.