Amberson Marten, C.J.
1. On August 14, 1911, the plaintiff Akkawa and her daughter-in-law Tulsawa sold the suit property to one Hayatkhan for Rs. 1,300. That is Exhibit 45. At that time Tulsawa, as the widow of the plaintiff's son Bhimaji, was the immediate owner of the property, and the plaintiff was the nearest reversioner. In the following year Tulsawa remarried and thereupon the plaintiff Akkawa succeeded to the property. In 1921 the plaintiff sued to recover the suit property from Hayatkhan's heirs in suit No. 472 of 1921. She obtained a decree, but in execution she was resisted by Hayatkhan's brother Sayadkhan, with the result that this present suit was instituted on December 13, 1922, against Sayadkhan.
2. It has been held by both Courts below that there was no legal necessity for the sale in 1911. Some attempt was made to challenge that finding before us, but we think the concurrent findings of both Courts must be upheld. It is not sufficient to show that possibly the onus of proof was put upon the wrong party. On the facts shown here, it would seem that the Court decided this point irrespective of where the onus lay.
3. The main point then for our decision is this. In a case where a Hindu widow without legal necessity sells property with the consent of the nest reversioner, can that same next reversioner subsequently challenge the transaction after the death of the Hindu widow One can clear the ground to some degree because two comparatively recent decisions by their Lordships of the Privy Council have made the position up to a certain point quite clear. One proposition established beyond all question by Annada Mohan Roy v. Gour Mohan Mullick (1923) L.R. 50 25 Bom. L.R. 1269 is that by Indian law you cannot transfer a mere apes successionis nor can you contract to transfer it. Consequently, the position in India is quite different to what was laid down in England in Tailby v. Official Receiver, (1888) 13 App. Cas. 523 where Lord Macnaghten said (p. 542) :-.
The claim of the purchaser was rested on well-known principles. It has long been settled that future property, possibilities and expectancies are assignable in equity for value. The mode or form of assignment is absolutely immaterial provided the intention of the parties is clear. To effectuate the intention an assignment for value, in terms present and immediate, has always been regarded in equity as a contract binding on the conscience of the assignor and so binding the subject-matter of the contract when it cornea into existence, if it is of such a nature and so described as to be capable of being ascertained and identified.
4. But here in India Section 6 of the Transfer of Property Act enacts that '(a) The chance of an 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.' That applies not merely to a transfer but also to an agreement for a transfer. Stopping there for a moment, Akkawa at the date of the deed of August 14, 1911, had merely a spes successionis expectant on the determination of the estate of Tulsawa and on herself being alive at that determination, Consequsntly, if Section 6 stood alone, Akkawa could not have assigned or transferred that spes successionis, nor could she have contracted to do so.
5. I now pass to another branch of the law. In Rangasami Gounden v. Nachiappa Gounden , 21 Bom. L.R. 640 the question of a Hindu widow's alienation with the consent of the reversioners has been analysed together with the relevant and somewhat conflicting previous authorities on the point. It is now clear that a Hindu widow may surrender the whole of her estate to the next reversioner. (See p. 84). Similarly she and the next reversioner may convey the whole estate to a third party. That necessarily follows from the first proposition because it only means that one transaction can thus be done instead of two, viz., first a surrender to the reversioner, and then a conveyance by the reversioner to a third party. But it must be of the whole estate. If it is, then the matter is finally concluded, and nobody thereafter can question it. If, on the other hand, the transaction is only as regards a part of the estate, then if you find that it is done with the consent of the whole of the reversioners then in existence, or of such a large proportion of them as signifies that the transaction is substantially with the consent of the body of reversioners, then the presumption is that the transaction is one for legal necessity. But that presumption may be rebutted.
6. Stopping there, the present case comes within neither the first branch nor the second. In the present case, the whole estate has not been conveyed. That is clear from the document itself, and also from the judgment in a subsequent case, Exhibit 39. Further the second proposition doss not apply because the findings here are that there was no legal necessity.
7. But a third ground was still left by their Lordships of the Privy Council for consideration (see p. 85), viz., whether a reversioner who thus consents to a transaction is afterwards estopped from challenging the transaction. This is put under Section 115 of the Indian Evidence Act in that case. The Board there held that the previous decision in Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) L.R. 35 IndAp 19 Bom. L.R. 1348 had not been founded on the ground of estoppel, but they went on to say this (p. 86) :-
But apart from that, if Bajranji Singh's Case had been decided on the ground of estoppel, it affords no parallel to the present case. In that case all the reversioners in being had consented to the alienations. They were bound by their own consent, and the post nati were hold to claim through those that were bound. Here the plaintiff never consented to the deed, nor is his claim traced through Ramasami even in the matter of descent.
8. It is accordingly said that in that particular case estoppel was not open to the parties, and that moreover their Lordships recognised that if the than parties had been consenting parties to the impeached transaction, then they would have been bound by estoppel. Now there have been two decisions in cur Court, viz., Bai Parvati v. Dayabhai Manchharam I.L.R. (1919) 44 Bom. 488Bom. L.R. 704 by Sir Norman Macleod and Mr. Justice Heaton, and Basappa v. Fakirappa I.L.R. (1921) 46 Bom. 292, 23 Bom. L.R. 1040 by Sir Norman Macleod and Mr. Justice Shah. Those two decisions appear to me to be in conflict. The one case has been followed here by the Subordinate Judge, and the other by the appellate Court. In the former case Sir Norman Macleod held that no case of estoppel could possibly arise. In the latter case he, I gather, held that a person in the position of a next reversioner, as in the present case, was bound by estoppel. In support of the second of these decisions we have been referred by counsel to certain further authorities, viz., Vinayak v. Govind I.L.R. (1900) 25 Bom. 129, 2 Bom. L.R. 820, a decision of Sir Lawrence Jenkins and Mr. Justice Ranade, which was cited in Bajrangi Singh v. Manokarnika Bakhsh Singh, (1907) L.R. 35 IndAp 1,9 Bom. L.R. 1348 and also Bhausaheb v. Ramgauda : AIR1923Bom471 a decision of Sir Norman Macleod and Mr. Justice Crump, and Mallik Saheb v. Mallikarjunappa I.L.R. (1913) 38 Bom. 224, 15 Bom. L.R. 1142. a decision of Mr. Justice Beaman and Mr. Justice Macleod.
9. Whether those cases are all consistent with the Privy Council case in Annada Mohan Roy v. Gour Mohan Mullick, 25 Bom. L.R. 1289 which I have cited, may be open to question. There is also another case of Our Narayan v. Sheolal Singh, (1918) I.L.R. Cal. 566 a decision of the Privy Council, which has a bearing on the subject. And in addition to the cases I have just alluded to there are those which I referred to in the beginning of my judgment, viz,, Annada Mohan Boy v. Gour Mohan Mullick, which also dealt with Harnath Kuar v. Indar Bahadur Singh, (1922) L.R. 50 IndAp 69 as to what is the general law apart from the question of Hindu reversioner.
10. Now it seems to us desirable that a point of such importance as the one before us should be dealt with in a conclusive manner, and that it should not be left to legal practitioners nor to various Judges to distinguish between this case and that case, but to have, if possible, a clear and definite ruling as to what is permissible and what is not. Accordingly we think that the best course here is to submit the main point in dispute for the opinion of the Pull Bench. Accordingly the point submitted will be in effect the question which I enunciated at the beginning of my judgment. The precise form of it can be settled at a later stage if necessary. It should also be put to the Full Bench as to whether it makes any difference that the next reversioner is a female. In this respect the appellant relied on Varjivan Rangji v. Ghelji Gokaldas I.L.R. (1881) 5 Bom. 563, Vinayak v. Govind I.L.R. (1900) 25 Bom. 129, s.c. 2 Bom. L.R. 820 and Pilu v. Babaji I.L.R. (1909) 34 Bom. 16511 Bom. L.R. 1291, to show that it is essential that the reversioner should be a male and not a female. On the other hand, in Basappa v. Fahirappa : (1921)23BOMLR1040 , Mr. Justice Shah seems to have been of opinion that it did not make any difference as to which sex the reversioner belonged.
11. There is yet one further point, viz., whether the respondents can rely on Section 43 of the Transfer of Property Act. This is the section which corresponds with the English doctrine of feeding the estoppel. That will depend on whether the respondent is entitled to the benefit of the original contract. Unfortunately, no evidence has been taken in the Court below to prove that the defendant derives title from the original purchaser Hayatkhan. He has pleaded how his title is derived, but he has given no evidence, and the trial Judge thought that issue unnecessary. This question of fact can, if necessary, be determined at a later stage. What the parties want to know at the outset is what are the principles of law which govern their particular case.
12. There will accordingly be a reference to the Full Bench in the manner I have already indicated. The learned pleaders engaged may submit the draft issues for approval.
13. In regard to the two points, which are being referred to the Full Bench, I may note the particular Bombay cases in which there appears to be some conflict of opinion in respect of these two questions.
14. In favour of the view that a reversioner, who has consented to an alienation by a Hindu widow during her life-time, is bound by his consent, so far as he personally is concerned, the most important case is Basappa v. Fakirappa I.L.R. (1921) 46 Bom. 292 23 Bom. L.R. 1040 and other cases of importance are Vinayak v. Govind I.L.R. (1900) 25 Bom. 129, 2 Bom. L.R. 820 and Bhausaheb v. Ramgauda : AIR1923Bom471 . Important cases from the opposite point of view are Bai Parvati v. Dayabhai Manchharam I.L.R. (1919) 44 Bom. 488 22 Bom. L.R. 704 and Annada Mohan Boy v. Gour Mohan Mullick , 25 Bom. L.R. 1269.
15. The abovementioned case, namely, Bai Parvati v. Dayabhai Manchharam, has been distinguished in Basappa v. Fakirappa; but the facts of these two cases are rather similar. It is also noticeable that in the present case the trial Court has relied chiefly on Bai Parvati v. Dayabhai Manchharam, while the appellate Court has relied chiefly on Basappa v. Fakirappa. This tends to show that the distinction between the two cases has not yet been fully appreciated by the Courts, and that further elucidation of the point is desirable.
16. In regard to the other case mentioned above, namely, the Privy Council case of Annada Mohan Roy v. Gour Mohan Mnllick, the decision of the Privy Council in that case is subsequent to Basappa v. Fakirappa and it is argued that it in effect supersedes Basappa v. Fakirappa. The argument is that, as it is laid down in this Privy Council case that the transfer of a spes successionis is not permissible, this result cannot be effected by means of the principle of estoppel. It is urged that, if an alienation of a spes successionis is to be upheld as against a reversioner who is bound by his consent it in fact means that, contrary to this Privy Council ruling, the transfer of a spes successionis is legalised, at least as against the reversioner who consented to it.
17. In regard to the second point, namely, whether, assuming that the decision in Basappa v. Fakirappa holds good in the case of a male reversioner, it also holds good in the case of a female reversioner, there is apparently also some conflict of decision. In favour of the view that a distinction should be made between a male and a female reversioner in this respect are the Bombay cases: Varjivan Rangji v. Ghelji Gokaldas I.L.R. (1881) 5 Bom. 563, Vinayak v. Govind I.L.R. (1900) 25 Bom. 129 2 Bom. L.R. 820 and Pilu v. Babaji I. L.R. (1909) 34 Bom. 165 11 Bom. L.R. 1291 while a different view is taken in Mallik Saheb v. Mallikarjunappa, I.L.R. (1913) 38 Bom. 224 ; 15 Bom. L.R. 1142 and in the judgment of Mr. Justice Shah in Basappa v. Fakirappa. I.L.R. (1921) 46 Bom. 292 23 Bom. L.R. 1040 It appears, therefore, that this point also requires to be elucidated by the decision of a Full Bench.
18. Per Curiam. We refer the following question to the Full Bench :-
If a Hindu widow sells a part of her husband's property without legal necessity but with the consent of the next presumptive reversioner, and subsequently dies, is the same reversioner estopped from challenging the validity of the transaction after the widow's death, either under Section 115 of the Indian Evidence Act or Section 43 of the Transfer of Property Act or otherwise, and whether such reversioner is a male or a female.
19. The reference was heard by a Full Bench consisting of Marten C.J. and Crump and Patkar JJ.
20. G.P. Murdeshwar, for the appellant. There is a conflict of opinion between Bai Parvati v. Dayabhai Manchharam I.L.R. (1919) 44 Bom. 488 22 Bom. L.R. 704 and Basappa v. Fakirappa. I.L.R. (1921) 46 Bom. 292 23 Bom. L.R. 1040 I submit that the first decision is correct. The consenting reversioner in that case was a female. The ruling is moreover consistent with the view of the Privy Council expressed in recent cases.
21. The consent only raises a presumption which is by no means conclusive. The only presumption is that the transfer is good. The presumption if not displaced by contrary proof may shut out the whole body of reversioners, i. e., those who have consented and those who have not. When convincing evidence is given to show absence of necessity, the consent of reversioners is of no avail. It cannot by itself validate a transaction which is not valid, i. e., the reversioner cannot thereby cure the transfer of a spes successionis. Where, however, the consenting reversioner is a female, she does not represent the whole body of reversioners and her consent is immaterial : Varjivan Rangji v. Ghelji Gokaldas I.L.R. (1981) 5 Bom. 563; Vinayak v. Govind. I.L.R. (1900) 25 Bom. 129, 2 Bom. L.R. 820
22. Section 115 of the Indian Evidence Act cannot be invoked to validate an invalid transaction : see Gur Narayan v. Sheolal Singh I.L.R. (1918) Cal. 566. and Rangasami Gounden v. Nachiappa Gounden. 21 Bom. L.R. 640
23. The question of estoppel does not arise, for if you regard the alienation by the widow as of her rights and the alienation by the reversioner as of the reversioner's rights, then, Section 43 of the Transfer of Property Act does not stand in the way of the reversioner when the reversioner becomes a full owner on the widow's death. The section does not apply to spes successionis : see Annada Mohan Roy v. Gour Mohan Mallik I.L.R. (1920) 48 Cal. 536 s.c. on appeal (1923); Harnath Kuar v. Indar Bahadur Singh. (1922) L.R. 50 IndAp 69
24. [PATKAR J. referred to Fateh Singh v. Thakur Rukmini Ramanji Maharaj. I.L.R. (1923) All. 339
25. A.G. Desai, for the respondent. The transfer in this case is the transfer by a Hindu widow with the consent of the next presumptive reversioner. The question of transfer of a spes successionis has no place. The cases of Gur Narayan v. Sheolal Singh I.L.R. (1918) Cal. 566 and Annada Mohan Roy v. Gour Mohan Mullick 25 Bom. L.R. 1269 are of transfers of apes succeasionis: they are no guide in this case. Two classes of cases arise where a widow alienates with the consent of the next reversioner : first, where the person consenting challenges the transaction; and, secondly, where the person who has not consented challenges it. The cases of Basappa v. Fakirappa I.L.R. (1921) 46 Bom. 292 23 Bom. L.R. 1040 and Mallik Saheb v. Mallikarjunappa I.L.R. (1923) 38 Bom. 224 15 Bom. L.R. 1142 are of persons who have not consented. The case of Fateh Singh v. Thakur Rukmini Ramanji Maharaj I.L.R. (1923) All. 339 F.B. is an instance of a person who has given his consent ; while the cases of Bajrangi Singh v. Manokarnika Bakhsh Singh (1907) L.R. 35 IndAp 1 9 Bom. L.R. 1348 Vinayak v. Govind I.L.R. (1900) 25 Bom. 129 2 Bom. L.R. 820, and Bhausaheb v. Ramgauda : AIR1923Bom471 are cases of persons who have stepped into the shoes of reversioners who have consented. It seems well settled that persons falling under the latter class are bound by their consent.
26. The doctrine of estoppel was applied to such persons in Rangasami Gounden v. Nachiappa Gounden 21 Bom. L.R. 640 and Fateh Singh v. Thakur Rukmini Ramanji Maharaj. I.L.R. (1923) 45 All. 339
27. In the case of Rangasami Gounden v. Nachiappa Gounden it is laid down that a consenting reversioner may be held to the transaction by the principle of ratification or 'as an election to hold the deed good' : Raja Modhu Sudan Singh v. Rooke. See also Mallick Saheb v. Mallikarjunappa I.L.R. (1913) 38 Bom. 224 15 Bom. L.R. 1142 and Mahadeo Prasad Singh v. Mata Prasad. I.L.R. (1921) 44 All. 44.
28. Murdeshwar, in reply. In the Privy Council case of Rangasami Gounden v. Nachiappa Gounden the principle of election was applied to a male reversioner, The same principle cannot be applied to a female reversioner. Further, a distinction ought to be drawn between cases where the election was made during the widow's lifetime and those where it was made after her death. It is the election of the second class that ought to be binding on the reversioner, for then there is no question of spes successionis. An election during the widow's life-time is in effect a dealing with a spes successionis and the question whether that could be done in view of Section 6 of the Transfer of Property Act was not considered in Rangasami's case.
Amberson Marten, Kt., C.J.
29. The solution to the question submitted to us will, in my judgment, be found in the Privy Council decision of Rangasami Gounden v. Nachiappa Gounden 21 Bom. L.R. 640. After summarising at p. 84 the two main grounds on which an alienation by a Hindu widow may be upheld, and after dealing next with the question of estoppel which, in that particular case, their Lordships held did not arise as the plaintiff never consented to the deed, nor was his claim traced through any consenting party, their Lordships dealt with yet a fourth branch under which transactions may be upheld. Put shortly that branch amounts to an election by a reversioner to treat the transaction as good. Their Lordships point out at pp. 86-87 that that can be done either after the reversion has fallen into possession, or alternatively it may be done even before that time. Thus they say :-
Of course something might be done even before that time which amounted to an actual election to hold the deed good.
30. In the present case the plaintiff actually joined in the deed by which the property in question was alienated. That is, I think, a clear election to hold the transaction as valid. That being so, in my judgment it makes no difference whether in such a case of election, the party electing was a male or was a female. A reversioner whether male or female could bring an action in the lifetime of the widow to set aside an alienation alleged to be invalid. If that is so, and he or she can thus elect to challenge a transaction as invalid, then surely it follows that he or she may also elect to hold that deed as valid. I think it must also be conceded that an election testified by actual joinder in a deed of alienation must be at least as good as any act of ratification or sanction given after that deed of alienation.
31. That being so, I respectfully agree with the result and the reasoning of the majority of the Full Bench of the Allahabad High Court in Fateh Singh v. Thakur Ruhmini Ramanji Maharaj. I.L.R. (1923) All. 339. There the judgment given by Sir Grimwood Mears in expressly put on this point of election.
32. That being so, it follows that I also agree with the conclusion arrived at by Sir Norman Macleod and Mr. Justice Shah in I.L.R. (1921) 46 Bom. 292 23 Bom. L.K. 1040 Basappa v. Fakirappa, though, as I have already intimated, I base my decision on the ground of election and not on the ground of estoppel.
33. I need only add by way of warning that we are not dealing here with a simple alienation by a reversioner alone. That would clearly be void for the reasons given in Ananda Mohan Roy v. Gour Mohan Mullick 25 Bom. L.R. 1269. What we have here is an alienation by a Hindu widow with the consent of the next reversioner, which is a totally different matter.
34. I would, accordingly, answer the question submitted to us by saying that the reversioner in the present case cannot now challenge the validity of the transaction having regard to her election testified by her being a party to the deed of August 14, 1911, Exhibit 45.
35. I agree.
36. I agree.