# [1952] 1 S.C.R. 478

- **Citation:** [1952] 1 S.C.R. 478
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeal No. 8 of 1951
- **Bench:** SAIYAD FAZL Au, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-478-39
- **Pages:** 13

## Headnote

[1952J
Arbitration-Award-"Malik
Mustaqil",
meaning
of-Whether conveys absolute estate-Award acted upon-Estoppel against
contesting its validity.
S and B were sons of two brothers respectively. S died in
1884 leaving a daughter
M, surviving him.
On the
death of
S dispute arose between B and M. B claimed the entire estate
by survivorship, alleging that S died in a itate of jointness with
him and that all the properties were joint family properties and
M was entitled only to maintenance.
The dispute was referred
to arbitration and an award was delivered.
Under it the suit
properties were given to M and the rest
of the estate then in
dispute was given to B.
The operative part of the award stated
inter alia that B, first party, and M, the second party, were held
entitled to
specified shares in
the properties
in
dispute
and
each had become permanent owner
(Malik Mustaqil) of his or
her share.
A division was effected and ever since the date of the
award in 1884 each branch continued in possession of the pro·
perties allotted to it and each had been dealing with them as
absolute owner.
The defendants claimed that the plaintiffs were
bound by the award and were in any evc::nt
estopped from chal·
lenging it.
In 1941
B's grandsons instituted a suit claiming
the
pro·
perties allotted to M claiming that on the death of S his daughter
M succeeded to a limited estate and reversion opened out on her
death in 1929 and the plaintiffs were entitled as next reversioners,
as M's son had predeceased her. The defendants {M's grandsons)
alleged that the
property possessed by
M consisted
partly of
property which belonged to her and partly
of property which
belonged exclusively to he;r father to which
she
siua:eeded as
daughter.
H~ld, that the award gave an absolute estate
to' M as the
words uMalik Mustaqil" were strong, clear and unambiguous and
were not qualified by other words and circumstances appearing in
the same document
in the present case.
Held further, that even if the award be assumed to be invalid
the plaintiffs' claim was barred by the plea of estoppcl.
There
was estoppcl against B because by his conduct he induced M to
believe that the decision of the arbitrator was fair and reasonable
and both the parties would be bound by it and he induced her
to act
greatly to.
her detriment and to
alter her position by
accepting the award and never attempting to go behind it as long
,
S.C.R .
SUPREME COURT REPORTS
479
.as he lived; there was estoppel against B's sons because it des-
'' cended to them as they stepped into his shoes, and further there
was independent estoppel against B's son
K by his acts and
conduct as evidenced in this case.
There was estoppel against
plaintiffs who claimed_ through their father K.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 8 of 1951.
Appeal from the judgment and decree dated 12th
October, 1944, of
the High Court of Judicature at
Allahabad
(Allsop and Malik JJ.)
in First Appeal
No. 374 of
1941
arising out of a Decree dated 31st
July, 1941, of the Court of the Civil Judge, Moradabad,
in Original Suit No. 9 of 1941.
-
Bakshi Tek Chand (S. K. Kapoor, with him) for the
appellant.
·t
Achhru Ram (/wala Prasad, with him) for the
respondent.
1952. February 22. The judgment of the Court
was delivered by
BosE J.-This is a litigation between two branches
of a family whose common ancestor was one Megh
Raj
Singh. The family tree is
as follows :
I .
Jawahar Singh
Megh Raj Singh
I
I
Shanker Lal (d. 1884)
Mada~Singh
-
I
Brijlaf (d. 1889 or (1890)
I
Daughter : Mst. Mohan Dei
(d. Oct.1929)
Husband: Narain Das
I
Shri Kis~an Das
(d. March 1929)
I
I
I
.
Mst.Deok•
(d. 1894)
I
· h I
1
I.
d
K1s an La
Mahabir Prasa
(d. 21-5-1940)
(d. 1921)
l I.
I
Juga Ki shore Amar Nath
Plff. 1
Plff.2
Dhiyan Singh
Deft. l
Jai Bhagwan Singh
Deft. 2
I
I
Obas Ram
Onkar Prasad
The dispute is about property which, according to
~
the plaintiffs, formed part of Shanker Lal's estate.
The plyaintiffs state that the two branches of the
..1.. 7
family were separat

## Text

1952
Feb. 22.
478
SUPREME COURT REPORTS
ti.
DHIYAN SINGH AND ANOTHER
JUGAL KISHORE AND ANOTHER.
[SAIYAD FAZL Au and VIVIAN BosE JJ.]
[1952J
Arbitration-Award-"Malik
Mustaqil",
meaning
of-Whether conveys absolute estate-Award acted upon-Estoppel against
contesting its validity.
S and B were sons of two brothers respectively. S died in
1884 leaving a daughter
M, surviving him.
On the
death of
S dispute arose between B and M. B claimed the entire estate
by survivorship, alleging that S died in a itate of jointness with
him and that all the properties were joint family properties and
M was entitled only to maintenance.
The dispute was referred
to arbitration and an award was delivered.
Under it the suit
properties were given to M and the rest
of the estate then in
dispute was given to B.
The operative part of the award stated
inter alia that B, first party, and M, the second party, were held
entitled to
specified shares in
the properties
in
dispute
and
each had become permanent owner
(Malik Mustaqil) of his or
her share.
A division was effected and ever since the date of the
award in 1884 each branch continued in possession of the pro·
perties allotted to it and each had been dealing with them as
absolute owner.
The defendants claimed that the plaintiffs were
bound by the award and were in any evc::nt
estopped from chal·
lenging it.
In 1941
B's grandsons instituted a suit claiming
the
pro·
perties allotted to M claiming that on the death of S his daughter
M succeeded to a limited estate and reversion opened out on her
death in 1929 and the plaintiffs were entitled as next reversioners,
as M's son had predeceased her. The defendants {M's grandsons)
alleged that the
property possessed by
M consisted
partly of
property which belonged to her and partly
of property which
belonged exclusively to he;r father to which
she
siua:eeded as
daughter.
H~ld, that the award gave an absolute estate
to' M as the
words uMalik Mustaqil" were strong, clear and unambiguous and
were not qualified by other words and circumstances appearing in
the same document
in the present case.
Held further, that even if the award be assumed to be invalid
the plaintiffs' claim was barred by the plea of estoppcl.
There
was estoppcl against B because by his conduct he induced M to
believe that the decision of the arbitrator was fair and reasonable
and both the parties would be bound by it and he induced her
to act
greatly to.
her detriment and to
alter her position by
accepting the award and never attempting to go behind it as long
,
S.C.R .
SUPREME COURT REPORTS
479
.as he lived; there was estoppel against B's sons because it des-
'' cended to them as they stepped into his shoes, and further there
was independent estoppel against B's son
K by his acts and
conduct as evidenced in this case.
There was estoppel against
plaintiffs who claimed_ through their father K.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 8 of 1951.
Appeal from the judgment and decree dated 12th
October, 1944, of
the High Court of Judicature at
Allahabad
(Allsop and Malik JJ.)
in First Appeal
No. 374 of
1941
arising out of a Decree dated 31st
July, 1941, of the Court of the Civil Judge, Moradabad,
in Original Suit No. 9 of 1941.
-
Bakshi Tek Chand (S. K. Kapoor, with him) for the
appellant.
·t
Achhru Ram (/wala Prasad, with him) for the
respondent.
1952. February 22. The judgment of the Court
was delivered by
BosE J.-This is a litigation between two branches
of a family whose common ancestor was one Megh
Raj
Singh. The family tree is
as follows :
I .
Jawahar Singh
Megh Raj Singh
I
I
Shanker Lal (d. 1884)
Mada~Singh
-
I
Brijlaf (d. 1889 or (1890)
I
Daughter : Mst. Mohan Dei
(d. Oct.1929)
Husband: Narain Das
I
Shri Kis~an Das
(d. March 1929)
I
I
I
.
Mst.Deok•
(d. 1894)
I
· h I
1
I.
d
K1s an La
Mahabir Prasa
(d. 21-5-1940)
(d. 1921)
l I.
I
Juga Ki shore Amar Nath
Plff. 1
Plff.2
Dhiyan Singh
Deft. l
Jai Bhagwan Singh
Deft. 2
I
I
Obas Ram
Onkar Prasad
The dispute is about property which, according to
~
the plaintiffs, formed part of Shanker Lal's estate.
The plyaintiffs state that the two branches of the
..1.. 7
family were separate at all material times; that on
1952
Dhiyan Singh
and Anotht:r
v.
/ugal Kishore,
11nd Another.
1952
Dhiyan Singh
and Another
v.
fugal Kishore
11nd Another.
Bose/.
480
SUPREME COURT REPORTS
[1952]
Shanker Lal's death in 1884 his daughter Mst. Mohan
Dei
(the defendants' grandmother)
succeeded to a
limited estate.
The
reversion
opened
out on her
death in October 1929 and the
plaintiffs are entitled
as
the next reversioners, for
M~t. Mohan Dei's son
Shri Kishan Das predeceased her.
The defendants admit that Shanker
Lal was
separate
from the other
branch
of the
family.
They
divide the
property which
their
grandmother Mst.
Mohan Dei possessed
into two
categories.
First,
there was property which they
say belonged to her.
These are properties
which,
according to
them, she
purchased or obtained under mortgages in her own
right.
Next,
there were
properties which
belonged
exclusively
to her father and to which she succeeded
~ daughter. On Shanker Lal' s death disputes arose
between Shanker LaJ's father's brother's son Brijlal
(the
plaintiffs'
grandfather)
and
the
defendants'
grandmother Mst.
Mohan Dei.
Brijlal claimed the
entire estate by survivorship, his
allegation being that
Shanker Lal died in a state of jointness with him and
that
all the properties were joint family properties.
This dispute was referred to arbitration and an award
was delivered.
Under it Mst. Mohan Dei was given
the suit properties as absolute owner and the rest
of
the estate then in
dispute
was
given to Brijlal. A
division was
effected
accordingly and
ever since, that
is
to say, from
21-12-1884, the date of the award,
down to 26-3-1941, the date of the suit, each branch
has
been in
separate and uninterrupted possession of
the properties respectively allotted to it and each has
been dealing
with
them as absolute
owner.
The
defendants claim that
the
plaintiffs
are
bound
by
this award and are in any event estopped.
The plaintiffs lost in the first Court but won in the
High Court. The defendants appeal.
The first question is about the nature of the award.
The defendants say that it gave
Mst. Mohan Dei an
absolute estate.
The plaintiffs deny this and say she
obtained only a limited estate.
In our
opinion,
the
defendants are right.
•
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•
t
y
S.C.R.
SUPREME COURT REPORTS
481
The question at issue
tion.
The award is Ex.
runs thus :
is a simple one of construe1952
A-1.
The operative portion Dhiyan Singh
rznd .dnotlier
"Having regard to the specifications given above,
Brij
Lal, first party, and Musammat Mohan Devi, the
deceased's
female
issue,
second
party, have
been
. held
entilted
to
shares,
worth
Rs.
28,500
and
Rs.
42,482-10-0
respectively in the said
properties;
and accordingly .•. two lots have been made and the
first
lot is allotted to the
first party and the second
lot to the second
party; and henceforth
the parties
shall
have no claim or liability against each other;
and
each party has become
permanent owner (malik
mustaqil) of his or her share; and each party should
enter in proprietary possesion and occupation of his
or her respective share ...... "
The underlining is ours.
We do not think, the words admit of any doubt,
particularly as the words "malik
mustaqil" have been
used: see Ram Gopal v. Nand /.Jal and Others(1)
and
Bishunath
Prasad
Singh v.
Chandika
Prasad
Kumari(2). But
it was
argued that the
award must
be viewed as a whole and that certain earlier passages
show that this could not have been the intention. The
passages relied on are these.
First, the finding that
the properties claimed by Mst. Mohan Dei
~s her own
really belonged to Shanker Lal. He had purchased
some and acquired others through mortgages in her
name but she was only a benamidar and had no title
to them. Second, that some of the properties in dispute were ancestral and the rest self acquired, though
whether with the help of ancestral funds or not the
arbitrator was unable
to
determine.
Third,
the
arbitrator's view of the Hindu law,
namely that-
"the brother should be the owner of the
1oznt
ancestral property and the daughter who has a male
issue should be owner of the self-acquired property."
And lastly, this passagev.
fugal Kislior~
ant .dnotlier.
Bose/.
..i... ~
(I) [1950] S.C.R. 766 at 778.
(2) (1933) 60 I. A. 56 at 61 & 62.
1952
Dhiyan Singh
and Another
v.
fugal Kishore
and Another.
JJose /.
482
SUPREME COURT REPORTS
[1952]
"Furthermore, when the
2nd party (Mohan Dei)
has inherited no property from her husband, she, m
case of getting this share, will certainly settle down in
Amroha and will make her father's haveli as her abode
and thus the haveli shall
remain abad as
heretofore,
and in this way the deceased's naine will be perpetuated; and it is positive that, after the Musammat, this
property shall devolve on her son, who will be the
malik (owner) thereof, and later the descendant of this
son will become the owner thereof."
We do not think1 these passages qualify the operative
portion of the award and are unable to agree with
the learned Judges of the High Court who hold they
·do. In our opinion, the arbitrator was confused in his
mind both as regards the facts
~ well as regards the
law.
His
view
of the law may have
been wrong
but the words used are, in our opinion, clear and, m
the absence of anything which would unainbiguously
qualify tl1em, we must interpret them in their usual
sense.
Some cases were cited in which the word "malik",
and in one case the words "malik mustaqil" were held
to
import a
limited
estate
because of qaulifying
circumstances.
We think it would be pointless to
examine them because we are concerned here with the
document before
us and even if it be conceded that
words which would ordinarily mean one thing can be
qualified by other words and circumstances appearing
in the saine document, we are of op11110n that the
passages and
circumstances relied
on in this case do
not qualify the strong,
clear and unambiguous words
used in this document.
The learned counsel for
the
plaintiffs-respondents had to search diligently for the
meaning for which he contended in other passages and
had to make several assumptions which do not appear
on the face of the award as to
what the arbitrator
must have thought and must have intended.
We are
not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made
to coincide with either view by calling in aid assumptions of fact about whose existence we can only guess.
-
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,..
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•
:S.C.R.
SUPREME COURT REPORTS
483
The award was attacked on other grounds also.
It
was urged, among other things, that the arbitrator had
travelled beyond the terms of his reference in awarding Mst. Mohan Dei an absolute interest.
It was
. also urged that even if
Brijlal was bound his son
Kishan Lal, who did not claim through him but who
had an independent title as reversioner to Shanker Lal,
would not be bound, and it was contended that if
Kishan Lal was not bound the plaintiffs would not be
-either.
But we need not examine these points because
we do not need to proceed on the binding nature of the
award. ·Even if the award
be invalid we are of
opinion that the plaintiff's claim is completely answer-
.ed by the plea
of estoppel.
Now it can be conceded that before an estoppel can
arise, there must be, first, a representation of an exist-
·ing fact as
distinct from a mere
promise de futuro
made by one party to the other; second, that the
·other party,
believing it, must have been induced to
act on the faith of it; and third, that he must have ~o
acted to his detriment.
It will be necessary to deal with this in stages and
first we will consider whether there was any estoppel
agtainst Brijlal.
It is beyond
dispute
that
he
laid
.serious claim to the property in 1884. He claimed that
he was joint with Shanker Lal and &,o, on Shanker
Lal's
death he became entitled to the whole
of the
•estate
and that Mst. ·Mohan Dei had only a right of
maintenance.
Whether he would have had
difficulty
in establishing such a claim, or indeed whether it
would have been impossible for him to do so, is
wholly immaterial. The fact
remains
that he pressed
his claim and was serious about it, so much so that he
was able to persuade the arbitrator that he had an
immediate right to part of the estate.
Mst. Mohan
Dei, on the other hand, resisted this claim and contended that she was entitled to separate and exclusive
possession,
and in any event, that she was entitled in
.absolute right to a part of the property. On the facts
which now emerge it is evident that Brijlal had no
.right and that his hopes of one .day succeeding :u
1952
Dhiyan Singh
and Another
v •
fugal Kishore
and Another.
Bose/.
1952
Dhiyan Singh
and Another
v.
fugal Kishore
and Another.
Bose /.
484
SUPREME COURT REPORTS
[1952]
reversioner were remote.
Mst. Mohan Dei had a son
Shri
Kishan
Das who was the next presumptive
reversioner and as the boy was a good deal younger
than
Brijlal,
Brijlal's chances
were slim.
Actually,
the boy survived Brijlal by nearly forty years. Bnjlal
died in 1889 or 1890 and the
boy did not die
till
March
1929.
Had he
lived
another
eight or nine
months he would have
succeeded and the
plaintiffs
would have been nowhere. Now this dispute, seriously
pressed by both sides, was refered to arbitration.
It
is neither here nor there whether the award was valid,
whether the decision fell within the scope of
the
reference or whether it had any binding character in
itself.
Even if it was wholly invalid, it was still open
to the parties to say : Never mind whether the arbitrator was right or wrong, his decision is fair and sensible,
so instead of wasting further time and money in
useless litigation,
we
will
accept it and divide the
estate in accordance with His findings.
That
would
have been a perfectly right
and proper settlement of
the dispute, and whether it bound third parties or not
it would certainly bind the
immediate
parties; and
that in effect is what they did. By his conduct Brijlal
induced Mst. Mohan Dei to believe that this would be
the case and on
the
faith of that
representation,
namely the acceptance of the award, he induced Mst.
Mohan Dei
to act greatly to her detriment and to alter
her position by accepting the award and parting with
an appreciable portion of the estate,
and he himself
obtained a substantial advantage
to which
he would
not otl1erwise have been entitled and enjoyed the benefit
of it for the rest of his life; and to his credit be it said,
he never attempted to go behind his decision.
In any
event, we are
clear
that that created an estoppel as
against Brijlal.
In our opinion, the present case is very similar to
the one which their
Lordships
of the Privy Council
decided in Kanhai Lal v. Brij Lal('). There also there
was a dispute between a limited owner and a person
who,
but for an unproved claim (adoption) which he
(I) (1919) 45 I.A. 118, .
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•
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•
>
•
-
,.
>
-
{
... +
S.C.R.
SUPREME COURT REPORTS
485
put forward,
had no right
to the estate. The dispute
was taken to the courts but was compromised and
according to the agreement the property was
divided
between the two rival claimants and the agreement
was given effect to and acted on for a period of twenty
years.
Later, the succession opened out and the other
party to the comprol!lise, who by then had stepped
into the reversion,
claimed the rest
of
the estate,
which had been assigned to the limited owner, against
her personal heirs.
The Judicial Committee rejected
the claim on the ground of estoppel and held that even
though the plaintiff claimed in a different character in
the suit, namely as reversioner, he having been a party
to the compromise and having acted on it and induced
the other side to alter her position to her detriment,
was estopped.
We do not think the fact that there
was a voluntary compromise, whereas here there was
the
imposed
decision of an
arbitrator
makes
any
difference because we are not proceeding on the footing
of the award but on the actings of the parties
in accepting it :when they
need
not have don.e so if the
present contentions are correct.
It is true that in one sense a question of title
is one
of law and it is equally true that there can be no estoppel on a question of law. But every question of law
must be grounded on facts and when Brijlal's conduct
is analysed it will be found to entail an assertion by
him that he
admitted and
recognised facts
which
would in law give Mst. Mohan Dei an absolute interest
in the lands awarded to her.
It was because of that
assertion of fact, namely his recognition and admission
of the existence of facts which would give Mst. Mohan
Die an absolute interest, that she was induced to part
with about one-third of the property to which Brijlal,
on a true estimate of the facts as now known, had no
right.
There can be no doubt that she acted to her
detriment and there can, we think, be equally no
doubt that
she
was induced to do so on the faith of
Brijlal's statements and conduct which induced her to
believe that he accepted all the implications of the
1952
Dhiyan Singlt
and Another
v.
fugal Kishortt
and Another.
Bose/.
1952
Dhiyan Singh
and Another
v.
/ugal Kishorc
and A nothcr.
Bo,.].
486
SUPREME COURT REPORTS
[19521
award.
But
in any event, we are clear that Brijlal
would have been estopped. The nature of the dispute
and the description of it given m the award show that
there was
considerable doubt, and certainly much
dispute, about the true state of affairs. Even if the
arbitrator was wholly wrong and even if he had no
power to decide as he did, it was open to both sides to
accept the decision and by their acceptance recognisr,
the existence of facts which would in law
give
the
other an absolute estate in the properties they agreed
to divide among themselves and did divide.
That, in
our opinion is a representation of an existing fact or
set of facts.
Each would
consequently
be
estopped
as
against the
other and Brijlal in particular would
have been estopped from denying the existence of facts
which would give Mst. Mohan Dei an absolute interest
in the suit property.
We turn next to his son
Kishan Lal. Brijlal
died
in 1889 or 1890.
At that date Mst.
Mohan Dei's son
Shri Kishan Das was alive and was the next presumptive
reversioner.
Brijlal's sons therefore had no more
right
to that
portion of his estate which was assigned
to Brijlal than Brijlal himself.
But they took
possession and claimed through their father. They dio not
claim an independent title in themselves,
and,
as we
know, they had no other title at that date. They were
therefore in no better position than Brijlal and as
Brijlal would have been estopped, the estoppcl descended to them also because they stepped into his shoes.
This would be so even if Brijlal had claimed the property independently for himself, which he did not; but
much more so as he claimed in joint family rights and
evidently acted
as karta or manager on behalf of his
family.
But apart from this,
there was also an independent
estoppel in Kishan Lal.
We have said,
he had
no
right to this part of , the
estate when his father died
apart from the award.
But nevertheless he took possession along with
his
brother and the two of them
treated the property as their
own
and derived benefit
i(
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•
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.;
'
S.C.R.
SUPREME COURT REPORTS
487
from it.
They partitioned
the estate between
themselves and sold away parts of it to third parties. Kishan
Lal knew of the award.
He knew that mutation had
been
effected in
accordance with . it and possession
taken by Brijlal under it and
that the
rest had been
retained by
Mst.
Mohan Dei. His retention of
the
property therefore and his continuing to deal with it
on the basis of the award. indicated his own acceptance
of the award and,
therefore, by his acts and conduct,
he represented that he also, like his father,
admitted
the existence of facts which would in law give
Mst.
Mohan
Dei an absolute estate,; and further, he allowed
Mst. Mohan Dei to deal with the estate as her own, for
she, on her part, also acted on the award and claimed
absolute rights in the property assigned to her. She
dealt with it on that footing and gifted it in that right
to her grandsons,
the contesting defendants, on
4th
April, 1929.
Mutation was effected and
Kishan
Lal
raised no objection.
We see then that Brijlal retained
possession of property to which he was not entitled for
a period of five or six years from 1884 to 1889 or 1890
and induced Mst. Mohan Dei to part with it by representing that he accepted the award and her
absolute
title to the rest, and after him Kishan Lal and his
brother between them enjoyed
the benefit of it from
1889 or 1890 down to October 1929 when Mst. Mohan
Dei died, that is, for a further forty years,
and
led
Mst. Mohan Dei to believe that. they also acknowledged
her title to an absolute estate. We have no doubt that
down to that time Kisan
Lal was also estopped for
the reasons
given
above. Had he questioned
the
award and reopened the dispute Mst. Mohaμ Dei would
at once have sued and would then for forty years have
obtained the benefit of property from which she was
excluded because of her acceptance of the award on the
faith
of Brijlal's assertion that he
too
accepted it.
Kishan Lal's inaction over these years with full knowledge of the £acts, as is evident from the deposition of
D.W. 2, Dhiyan Singh, whose testimonyis uncontradicted, and his acceptance of the estate with all its
consequential
benefits,
unquestionably
creates
an
estoppel in him. This witness tells us that1952
Dhiyan Singh
and Anoth"
v.
fugal Kishore
and Another.
Bose/.
1952
Dhiyan Singh
•nd Anolhcr
v.
/ugal Kishore
and Another.
Bose],
488
SUPREME COURT REPORTS
[1952]
"Kishanlal always
accepted this award and acted
upon it."
He qualifies this in cross-examination by saying that
Kishan Lal had also objected to it but the witness did
not konw whether that was before or after 'Mst. Mohan
Dei's death.
The documents filed show it was
after,
so there is no reason why the
main portion of his
statement which is
uncontradicted, and which
could
have been contradicted, should not be accepted.
In March, 1929, Mst. Mohan Dei's son Shri Kishan
Das died and
Kishan Lal thereupon became the next
presumptive reversioner, and in October, 1929, when
the reversion opened out the estate vested in him, or
rather would have vested in him but for the estoppel.
The question therefore is, did he continue to be bound
by the estoppel when he assumed a new character on
the opening out of the reversion?
We have no doubt
he did. The decision of the Judicial Committee which
we have just cited.
Kanhai Lal v.
Brzjla/(1), is, we
think, clear on that point. Although other reversioners
who do not claim through the one who has consented
are not bound, the consenting reversioner is
estopped.
This is beyond dispute, when there is an alienation by
a limited owner without legal necessity. See Ramgouda
Annagouda
v.
Bhausaheb(')
where the ground
of
decision was-
·
". . . but Annagouda
himself
being
a party
to and benefiting by the transaction evidenced thereby
was precluded from questioning any part of it."
In our opinion, the same principles -apply to a case
of _ the present kind.
It was contended, however,
on
the
strength
of
Rangasami Gounden v. Nachiappa
Gounden(8 )
and
Mt. Binda Kuer 11. Lalitha Prasad('), that even if
Kishan Lal did take possession in 1889 or 1890 on the
strength of a title derived from his father, that would
not have precluded him from asserting his own
rights
in a different character when the succession opened
(I) (1918) 45 I.A. 118.
(2) (1927) 54 I.A. 396 at 403.
(3) (1919) 46 I.A. 72.
(4) (1936) A.I.R. 1936 P.C. 304 at 308.
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.,
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T
S.C.R.
SUPREME COURT REPORTS
489
out.
Reliance in particular
was placed upon page 308
of the latter ruling.
In our opinion, that decision is
to be distinguished.
In that case the reversion did
not fall in till 1916.
Long before that,
namely in 1868, the next presumptive reversioners entered into a compromise
whereby
the grandfather of one Jairam who figured in !hat case
obtained a good deal more than he would nave been
entitled to in the ordinary way.
But for the compromise this grandfather would have got only one anna
12 gundas share, whereas due to the compromise he
got as much as 2 annas 4 gundas. The actual taking
of posse~sion was however deferred under the compromise till the death of one Anandi Kuer. She died in
1885 and on that date Jairam was entitled to his
grandfather's share as both his father and grandfather
were dead.
Jairam accordingly reaped the benefit of
the transaction.
But it is to be observed that the
extra benefit which he derived
was only as to a 12
gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own
right under a title which did not spring from the
compromise.
Jairam lost 1 anna 4 gundas to a creditor Munniram
and out of the one anna which he had left from the 2
annas 4 gundas he sold 13 gundas to the plaintiffs for
a sum of Rs.
500.
Now it is evident that on those
facts it is impossible to predicate that the 13 gundas
which the plaintiffs purchased came out of the extra
12 gundas which
Jairam obtained because of the compromise rather than out of the 1 anna 12 gundas to
which he had a good and independent title anyway;
and of course unless the plaintiffs' 13 gundas could be
assigned with certainty to the 12 gundas it would be
impossible to say that they had obtained
any
benefit
from the compromise.
The
Judicial
Committee also
added that
even if
it was possible to assign this 13
gundas with certainty to the 12 gundas it by no means
followed that the plaintiffs admitted that
fact
nor
would that necessarily have given them a benefit under
the compromise. They had
the
right to contest
the
1952
Dhiyan Sitttlt
and Anotht:r
v.
/ugal Kishore
and Another.
--
Bose/,
1952
Dhiyan Singh
and Another
v.
fugal Kishorc
and Another
Bo,_ J.
490
SUPREME COURT REPORTS
[1952}
pos1t10n and
gamble on the
possibility of being able
to prove the contrary. Their Lordships added-
"Unless the plaintiffs'
individual
it unjust that they should have
a
Bajrangi Lal's
revers1oners
their legal
have effect."
conduct
place
rights
makes
among
should
In the other case, Rangasami Gounden v. Nachiappa
Gounden('), their Lordships' decision about this matter
turned on the same sort of point : see page 87.
The present case is very different.
When
Kishan
Lal took possession of his father's property he held by
virtue of the award and under no other title, and for
forty years he continued to derive
benefit from it.
Accordingly, he would have been estopped even if he
had
claimed in a different
character as
reversioner
after the succession opened out.
It was conceded that if the estoppel against Kishan
Lal enured after October 1929, then the plaintiffs, who
claim through Kishan Lal,
would also be estopped.
The appeal succeeds. The decree of the High Court
is set aside and that of the first Court dismissing the
plaintiffs' claim is restored. Costs here and m the
High Court will be borne by the plaintiffs-respondents.
Appeal allowed.
Agent for the appellan~ : Ganpat Rai.
Agent for the respondents : Sardar Bahadur Saharya.
{I) (1919) 461.A. 72.
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