1. This is an appeal by the plaintiff in the suit out of which S.A. No. 402 of 1898, decided this day, arose. As stated in my judgment in that appeal, one Salig Singh died possessed of shares in three villages. The plaintiff sued to recover possession of those shares as Salig Singh's heir. The learned Judge of the Lower Appellate Court decreed the plaintiff's claim in respect of two of the villages, and dismissed his claim to the share in the third village, Banbhirpur.
2. It is in respect of this dismissal that the present appeal is brought.
3. Salig Singh died on the 2nd of October 1894.
4. On 31st of October 1894 the parties to this suit presented a joint application to the Revenue Court, setting forth the fact of Salig Singh's death, stating that they owned and possessed his share in Banbhirpur in the following way, namely, that the plaintiff owned and possessed one-third, the defendants Babu Lal and Silan Singh one-third, and the defendants Bechu Singh and Ram Karan Singh the remaining third, and praying for mutation of names in accordance with this division. The application was granted. It has been found by the lower Courts that the plaintiff and the two sets of defendants discharged a debt due from the estate of Salig Singh, the plaintiff paying one-third and each set of defendants one-third. The learned District Judge held that the plaintiff was bound by his admission in the mutation proceedings in regard to the share in Banbhirpur, and on this ground dismissed his claim to that share. In appeal here it is contended by the learned vakil for the appellants, who has argued the case very ably, that the plaintiff's admission in the mutation proceedings forms no bar to the assertion of his legal rights in the present suit. I am of opinion that this contention must be sustained. When, in the mutation proceedings, the plaintiff stated that he and the two sets of defendants were, on Salig Singh's death, the ownersof his property in Banbhirpu in equal shares, he made, no doubt under a misapprehension as to what were his legal rights, a mistaken statement of law. By law the plaintiff was the sole owner.
5. Now, it has been held that an admission on a point of law is not an admission of a 'thing,' so as to make the admission matter of estoppel within the meaning of Section 115 of the Evidence Act. In the case Juttendro Mohun Tagore v. Ganendro Mohun Tagore (1872) L.R. Sup. I.A. 47, their Lordships of the Privy Council observed, at p. 71 of the judgment:--' The plaintiff is not bound by an admission of a point of law, nor precluded from asserting the contrary in order to obtain the relief to which, upon a true construction of the law, he may appear to be entitled.' In the case Gopee Loll v. Mussamut Sreechundraolee Buhoojee (1872) 11 B.L.R. 391, the validity of an adoption was in question. The plaintiff who maintained the validity of the adoption contended that the defendant was estopped by her previous admissions and conduct from disputing either the fact or the validity of the adoption. As to this plea their Lordships of the Privy Council remark, at p. 395 of the judgment:--'It appears to their Lordships there is no estoppel in the case. There has been no misrepresentation on the part of the defendant on any matter of fact. She is alleged to have represented that Luchmunjee was adopted. The plaintiff's case is that Luohmunjee was in fact adopted. So far as the fact is concerned, there is no misrepresentation. It comes to no more than this, that she has arrived at a conclusion that the adoption, which is admitted in fact, was valid in law--a conclusion which, in their Lordships' judgment, is erroneous; but that creates no estoppel whatever between the parties.'
6. So in this case, when the plaintiff stated in the mutation proceedings that the share of Salig Singh in Banbhirpur was in the possession of himself and the defendants, he stated what was a fact. But in stating that on Salig Singh's death he and the defendants became owners of the share, he gave expression to a mistaken proposition of law which, on the authorities quoted above, creates no estoppel as between him and the defendants.
7. There is another ground also on which I should be prepared to hold that there is no estoppel here. This is not the case of a person who knows or must be deemed to know the real state of things creating by his representation a belief in the mind of a person who does not know the real state of things. For, quite apart from any representation made by the plaintiff, the defendants must be deemed to have known what their legal rights were.
8. The learned Counsel for the respondents endeavoured to support the decree of the lower Court by a plea based on Section 43 of the Code of Civil Procedure. It appears that the plaintiff brought a suit on the allegation that in July 1896 the defendants ousted him from land in Banbhirpur of which he was in joint possession with them, and it is argued that as he did not then claim the whole share in Banbhirpur the provisions of the second paragraph of Section 43 preclude the maintenance of the present suit. I cannot sustain this contention. The cause of action in this suit arose on the death of Salig Singh, and is different from the cause of action in the previous suit, which was the ouster by the defendants in July 1896.
9. As stated in my judgment in the connected appeal, the learned vakil for the plaintiffs-appellants admits that his clients are not entitled to an unconditional decree, and that the decree in their favour should be made subject to their repaying to the defendants the amounts which they disbursed towards defraying the debt due from Salig Singh's estate.
10. With reference to the above findings I allow the appeal and decree the plaintiff's claim subject to the condition that within three months from the date of this decree being certified to the Lower Appellate Court, they pay into Court the sum of Rs. 112, out of which Rs. 28 will be paid to each of the four defendants. If the plaintiffs fail to pay the above amount within the time fixed their suit will stand dismissed.
11. Under the circumstances of the case I direct that the parties bear their own costs throughout.