M K MUHAMMAD BATCHA SAHIB Vs. ARUNACHELLAM CHETTIAR

JUDGEMENT

(1.) The facts are complicated and as the Munsif has set them out clearly in his judgment, I do not propose to state them again. The 1 defendant was the owner of the property in dispute. On the 1 of August 1919, she executed a sale-deed in favour of the 2nd defendant (Ex. 11). On the 10 of September, 1919, she executed a sale-deed in favour of the plaintiff (Ex. C). The contest is now between the plaintiff and the 2nd defendant. The question is shortly, whose sale-deed is to prevail ?

(2.) The conveyance in favour of the 2nd defendant being earlier in date would in the ordinary course take precedence. On behalf of the plaintiff it is urged that the conduct of the 2nd defendant created an estoppel and that he is precluded from relying upon his sale-deed. The 2nd defendant treated the sale in his favour as cancelled, but under Section 92 of the Indian Evidence Act the subsequent agreement rescinding the sale cannot be proved. The question then is, did the 2nd defendant by any representation or by conduct amounting to representation induce the plaintiff to purchase the property parting with valuable consideration? The effect of the finding of the Courts below is that the conduct of the second defendant was of an unequivocal character and that the plaintiff was thereby misled. This is a question of fact and the finding must be accepted in second appeal. Even apart from this, I am satisfied that the finding is correct. It is unnecessary to narrate the circumstances which give rise to the plea of estoppel. The outstanding facts that are relied upon by the plaintiff in this connection are, that the first defendant with the concurrence of the second defendant agreed on the 5 of September to sell the property to the 7 defendant, that an agreement of sale was accordingly executed and that the second defendant, giving up his rights under his own conveyance, attested the agreement to sell. The second defendant thus held out that the sale in his own favour was inoperative, that the first defendant still continued to be the owner of the property, that she had authority to dispose of it and that the second defendant was willing that the property should be dealt with as if it was at the absolute disposal of the first defendant. In short, the second defendant's conduct amounted to a representation that although he took a conveyance, the 1 defendant remained the owner of the property. The Courts below have also held disbelieving the plaintiff himself on this point, that he was induced t6 purchase the property by his conduct on the part of the 2nd defendant. I agree with this conclusion. Can the 2nd defendant now turn round and say that he was on the date of the sale to the plaintiff, the owner of the property? I think not. In Sarat Sunder Dey V/s. Gopal Chunder Laha (1892) ILR 20 C 296 (PC), their Lordships of the Judicial Committee made the following observations: What the taw and the Indian Statute mainly regard is the position of the person who was induced to act ; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another by a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it.

(3.) Their Lordships quote the following passage from the judgment of Lord Chancellor Campbell in the case of Cairncross V/s. Lorrimer (1860) 3 Macq. HLC 829: The doctrine will apply, which is to be found, I believe, in the laws of all civilised nations, that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.