AMAR KRISHNA DE Vs. RAJENDRA KUMAR DE

JUDGEMENT

(1.) The suit which gave rise to this appeal was brought by the plaintiff for recovery of khas possession of the land of the site of a hut described in the schedule to the plaint after establishment of the plaintiff's raiyati title to it. The plaintiff's case is that the property in suit is included within a holding which belonged to Tarini Charan the father of the respondent. He died leaving a widow Raj Kumari and a son the present respondent. The mother and the son jointly executed a deed of sale in- favour of the plaintiff on the 21 Baisakh 1324, and it was agreed thereunder that the hut would be removed by the defendants within 15 days. They having failed to do so the plaintiff instituted the present suit against both Raj Kumari and Rajendra the respondent. After the institution of the suit Raj Kumari died and Raj Kumar was the sole defendant on the record as the heir and successor of his father. The First Court gave a decree to the plaintiff holding that the respondent is estopped by the transaction as shown by the kobala of the 21 Baisakh 1324, from denying the plaintiff's title. On appeal the learned District Judge has taken a different view and has held that under Section 6 of the Transfer of Property Act the reversionary interest of the respondent who was then a mere reversioner could not be transferred and so the plaintiff purchased nothing more than the eight-annas share which had accrued to the respondent on his father's death and that his claim in respect of the widow's limited interest in the remaining eight-annas share ought to fail. I should mention that Tarini left a widow Raj Kumari and two sons one of the sons died in the lifetime of the mother who inherited his share in the property left by Tarini and had a Hindu widow's estate in it.

(2.) The sole question, therefore, which arises and which has been ably argued on both sides before us is whether the respondent is estopped from challenging the sale to which he was a party. The learned Advocate for the appellant contends that the respondent is estopped from denying the validity of the sale and has relied upon a decision of the Allahabad High Court in the case of Mahdeo Prosad Singh V/s. Mata Prasad 63 Ind. Cas. 721 : 44 A. 44 : 19 A.L.J. 799 : 3 U.P.L.R. (A.) 134 : (1922) A.I.R. (A.) 297. In that case in a very considered judgment the learned Judge on facts similar to the present case held that the reversioner was affected by the doctrine of estoppel and was not entitled to challenge the validity of the deed to which he was a party. There the widow and the reversioner jointly executed a deed of gift in favour of the defendant. It was held that the plaintiff was estopped from challenging the transaction. Apparently a contrary view has been taken in the case of Bai Parvati V/s. Dayabhai Manchharam 58 Ind. Cas. 266 : 44 B. 488 : 22 Bom.L.R. 704. In that case the widow and one of the reversioners jointly executed a deed of gift. It was held by the learned Judges that the deed was good only as regards the life-estate of the widow and was bad as regards the reversioner's chance of succession under Section 6, Transfer of Property Act. There being a conflict between these two cases it is necessary to examine them carefully. In the Allahabad case almost all the cases bearing on this point were considered and on a consideration of those cases the learned Judges came to the conclusion that the weight of authority was entirely in support of the view that where the widow and the next reversioner joined in conveying a property by which they transferred the absolute interest in it the reversioner cannot after he comes into possession challenge the transaction under the rule of estoppel. The learned Judges considered the case of Bai Parvati and attempted to distinguish it though I do not personally think that there is any real distinction in principle between these two cases. The learned Judges of the Allahabad High Court expressed themselves with reference to the Bombay case that "if it was intended to lay down the general proposition that in no case a reversioner can by his act or conduct estop himself from challenging a transfer after he had succeeded to the estate, then we would not agree with the decision." As at present advised, I am inclined to follow the Allahabad decision in preference to the Bombay case. In the Bombay case the learned Judges proceeded simply upon Section 6, Transfer of Property Act, on the rule of non-transferability of spes successionis. They have not considered the question of estoppel. It was case of gift and the question of change of position of the donee by the act or conduct of the donor would rot have arisen. The present case is not a case of this description. It is a case of sale for consideration. I am not, therefore, called upon in this case to express any opinion as to whether in a case of gift the law of estoppel applies as in the case of transfer for consideration. In the Allahabad case, too, though there was a gift the learned Judges in the course of judgment observe that there was a lease previous to the gift for which a sum of Rs. 2,000 was paid as salami and, therefore, it could not be said that the gift was wholly without consideration.

(3.) It has been argued before us by the respondent that there is a distinction between a reversioner giving consent to a transfer by a widow and a reversioner joining a widow in the transfer. It is said that in one case the widow transfers the absolute, interest and the reversioner sanctions it by giving his assent. In the other case the transfer-is nothing more than of her life-interest and the reversioner joins in the conveyance in transferring the reversionary interest which under the law he is not competent to do. To my mind there does not seem to be much distinction; at any rate that distinction cannot be applied to the facts of this case. In either case it cannot be said that the widow has any absolute interest and the purchaser cannot purchase the absolute interest from the widow but with the consent of the reversioner. There is not much difference for practical purposes between a consent given by word of mouth or conduct or by attestation of the document and by joining in the conveyance with the widow which is sufficient evidence of his consent.