Harish Chandra, J.
1. This is a plaintiff's appeal arising out of his suit for the recovery of possession of a one-half portion of the property left by one Kedar Misra without payment of any sum or in the alternative, upon payment of such sum as may be found due by the Court. The suit was dismissed by the Munsiff and the lower appellate Court has also dismissed the appellant's appeal from the decree and judgment o the trial Court. He thus came to this Court in second appeal.
2. The appeal was heard and decided as far back as 8th January 1942 by Collister, J. who allowed the appeal and setting aside the decree of the lower appellate Court directed that Court to proceed to determine whether the appellant was entitled to possession of the property in suit with or without payment of any redemption money. This decree was however, subsequently set aside on 13th May 1948 as it was found that one of the respondents, namely, Inderjit Misra was dead at the time when the second appeal was heard and decided by this Court. The appeal having been restored to its original number has now been heard by me afresh.
3. One Rameshwar had three sons, Thakur Dayal, Debi Dayal and Janak. Thakur Dayal had a son, Deonath, and Deonath had three sons, namely, Manbahal, Nand Kishore and Ram Pratap. Ram Pratap is the plaintiff appellant. Debi Dayal had a son Batuk. Batuk had a son Awadh Behari and the latter had two sons, Inderjit and Kuber who were defendants 1 and 2. Inderjit having died his heirs Bijai Narain and Achhutanand Misra are now arrayed along with Kuber as respondents to this appeal. Janak had a son named Kedar who died about the year 1906 and was succeeded by his widow Srimati Maktula who held the property as a life estate until her death about the year 1930. It is this estate of Kedar which is in dispute in this litigation.
4. Between the years 1894 and 1906, Kedar had executed a number of usufructuary mortgages in favour of Batuk and his son Awadh Behari. After Kedar'a death other mortgages were executed in favour of the same persons by his widow Srimati Maktula. On 7th April 1908 Srimati Maktula executed a further mortgage in favour of the appellant who, as we have seen, is the grand-son of Thakur Dayal leaving money with the mortgagee for the payment of the earlier mortgages executed in favour of Batuk and Awadh Behari.
5. On 28th May 1909, an agreement was entered into between the appellant and Awadh Behari. Presumably, Batuk had died before that date. The amount o! mortgage money due to Awadh Behari was fixed at Rs. 1364-11-0 and the amount due to the appellant at Rs. 1,000/- out of which a sum of Rs. 600/- had been left with the appellant for the redemption of the earlier mortgages executed in favour of Awadh Behari and his father. It was agreed that during the life-time of Srimati Maktula each party would remain in possession of a moiety of the mortgaged property and that if Smt. Maktula desired to execute any further mortgage, deeds, the parties would advance money to her in equal amounts. It was further agreed that upon the death of Smt. Maktula each party would share the inheritance equally.
6. Notwithstanding the agreement that the parties would advance money in equal shares if Smt. Maktula desired to execute any further mortgages the appellant took another mortgage from her on 29th January 1918. Thereafter on 1st April 1920 a second agreement was concluded between the parties the terms of which were similar to those of the earlier agreement except that the amount of the mortgage money due to each party was fixed at Rs. 1172/-. This agreement was between the appellant and the defendants, the sons of Awadh Bahari. Apparently Awadh Behari had died before that date. The two agreements were acted upon and the mortgaged property was divided equally between the parties.
7. The appellant is admittedly the next reversioner of the estate of Kedar and as such he claims possession of the entire estate.
8. The defence case is that the settlements made in the years 1909 and 1920 were in the nature of a family settlement and that they are binding upon the appellant. The appellant's contention, however, is that Section 6(a), T. P. Act, makes the settlements illegal inasmuch as they amount in effect to a transfer by the appellant of his spas successions with respect to half the estate to which ho had a chance of succeeding as the nearest reversioner and that such a transfer is a nullity and ineffective in law.
9. The contention of learned counsel for the appellant is that the agreements cannot constitute a valid family arrangement for two reasons: (i) that the widow as representing the estate was no party to those agreements; (ii) that the settlement was with respect to property in which the parties had merely mortgagee's rights.
10. No doubt none of the authorities cited before me relates to a ease in which a family settlement was made in similar circumstances without the widow being a party to it. But I do not see why a family settlement made by certain members of a family should not be binding upon them. No doubt it will not be binding upon such members of the family as had not joined in it and it would be open to them to challenge it. But there is no reason why such members of the family as had joined in the settlement should not be bound thereby. The other contention would also appear to be without force. There is no reason why members of a family who have no proprietary interest in the property in their possession should not be able to enter into a family arrangement with respect to such right as they may possess in the property. A family may have merely tenancy rights in a certain land that may be in their possession and there is no reason why it should not be open to them to enter into a family arrangement with respect to such land. No doubt if the permission of the zamindar is necessary with respect to any such arrangement, such permission would have to be obtained; but that is an entirely different matter. Similarly, if a family is in possession of certain mortgagees rights only, there is no reason why the members of such family should not be entitled to enter into a valid family arrangement with respect to such rights. In my view the two agreements must be regarded as constituting a valid family arrangement.
11. The question that remains to be considered, however, is whether the arrangement so far as it relates to property which was still In the possession of the lady would be valid having regard to the provisions of Section 6(a), T. P. Act.
12. This question was considered by a Bench of this Court in Chabli v. Parmal, 41 ALL. 611: (A. I. R. (6) 1919 ALL. (SIC) 371). In that case one Khaman had died leaving surviving him four sons, Parmal, Hazari, Gokal and Pransukb. Who had divided the property amongst themselves. Hazari died first leaving a widow named Mt. Mulu who was subsequently married to the eldest brother, Parmal. Afterwards Pransush also died issueless leaving a widow named Indo. Thereafter the two surviving brothers came to an arrangement by which Parmal in consideration of his being allowed to retain the property of Hazari agreed to make no claim against Gokal to the property of Pransukh on the death of his widow Indo. Indo died some years later and Parmal brought a suit against the son of Gokal for the share of Pransukh. The defendants set up the family arrangement which had been entered into between the two brothers. The suit was dismissed by the District Judge on the ground that the contract amounted to an attempt to transfer the chance of an heir apparent succeeding to an estate and was therefore illegal under Section 6(a), T. P. Act. When the matter came up in appeal to the High Court, Rafiq J. referred the question to two Judges and the Bench by which the reference was heard came to the conclusion that the agreement amounted to a valid family arrangement which was not invalidated by the provisions of Section 6(a), T. P Act. Walsh J. during the course of his judgment observes:
'Reading Sections 5 and 6 together, it is clear that the latter section does no more than enumerate certain incorporeal, incohate, or contingent rights which cannot be transferred by an act of conveyance from one person to another. The other rights enumerated in Section 6 show that this is so. The section is not one imposing a statutory prohibition against the formation of contracts relating to certain specified subjects, as though, for example, they were contrary to public policy, and therefore forbidden. It merely enacts that a transfer or act of conveyance purporting to pass is ineffectual to pass any interest in these particular rights. The result is that they cannot be assigned either at law, or, to adopt the phraseology of English lawyers, at equity, by an act of transfer. And it follows that an imperfect act of transfer, or an act purporting to transfer rights mentioned in the section, confers no equitable interest upon the transferee such, as was recognised by the English Court Of Equity. But this does not mean, and in my judgment could never have been intended to mean, that an arrangement or contract supported by good consideration and otherwise binding in equity upon the parties thereto, will not be held binding in equity upon the parties to it merely because one of the results of it is to put one of the parties in the same position as if he had taken a transfer from the person entitled to an inheritance if a transfer could be actually effected.'
After making a reference to English law he further observes :
'It seems to me that the Courts in India are bound to apply the rules of equity and good conscience to such an agreement, unless it be against public policy or otherwise expressly forbidden, and that the fact that the formalities of the law of transfer do not allow such an arrangement to be effected by an assignment either in the nature of an act of conveyance or of an equitable assignment, is not sufficient to justify a negation of the obvious equity of the case. The transaction is not aimed at by the Transfer of Property Act; only the act of conveyance by an express transfer.'
He refers in his judgment to a number of authorities of this Court and other Courts and points out that
'the trend of authority in India appears to me to have been in the direction of supporting these transactions by the application of the rule of equity and good conscience to binding contracts or family arrangements which have been wholly performed on one side.'
Piggott J. who agreed with Walsh J. points out that :
'It is competent for a person to contract not to claim an inheritance, in the event of his becoming entitled to it on the death of a living person.'
13. In a later case of Pokhar Singh v. Dulari Kunwar : AIR1930All687 , a similar view was taken by a Bench of this Court and following these and other authorities my view is that the agreements referred to above constitute a valid family arrangement.
14. There is a further reason why this arrangement must be upheld As mentioned before, after the agreements had been entered into the parties actually divided up the mortgaged properties in their possession in accordance with them and continued to hold them in this manner until the death of the lady, which occurred in the year 1930. The appellant having taken possession of the property which was in the possession of Awadh Behari and after him of his sons, Inderjit and Kuber, in accordance with those agreements, cannot now be permitted to go against the representations that he bad made to them and is clearly estopped from challenging those agreements. This view is supported by a number of authorities including the case of Pokhar Singh v. Dulari Kunwar : AIR1930All687 to which reference has just been made. It is said that there can be no estoppel against a statute, but as has been pointed out above such an arrangements, has not been held to offened against the provisions of Section 6(a), T. P. Act, and the contention has no force.
15. I, accordingly, agree with the Courts below that the appellant is not entitled to recover possession of the property in suit from the respondents and dismiss the appeal with costs.