1. The only question raised in this appeal and for that matter the only question decided by the lower Courts is whether the conduct of the plaintiffs who are respondents before me has amounted to an estoppel or not. Prima facia this is a pure question of law, but I have been asked to consider that there is a definite finding of fact by the lower appellate Court which cannot be reversed on second appeal. The lower appellate Court had made in the course of his judgment the following observation:
I think the facts show that they, i.e., the plaintiffs had knowledge of the provisions of the Will, but I do not think that the evidence proves that they agreed to the provisions of the Will or that they made any representation that they would not oppose the Will when it became operative after the death of the testatrix.
2. From this point the learned Judge goes on to discuss the question of Law and his ultimate finding is clearly based on his view that the rulings which he cites are conclusively in favour of the plaintiffs. Reading the judgment as a whole, I do not consider that the learned Judge has decided the case on a question of fact. And I do not consider that where he uses the words 'I do not think' he can be held to have made a finding which is binding on the appellate Court. I my opinion, this is a matter which can be considered in second appeal and I must consider the judgment of the learned Judge of the Court below on the question of law.
3. This case is closely connected with a previous case which has become the subject of a Full Bench ruling of this High Court: Fateh Singh v. Thakur Rukmini Rawanji Maharaj AIR 1923 All 387. It appears that Mt. Munia made certain dispositions of some property and gave a portion to an idol and another portion to Mt. Pana. In the reported ruling the reversioners were arrayed against the idol and in the present case the reversioners or some of them are arrayed against a transferee from one Mt. Kamli who in her turn was a donee from Mt. Pana. In the Full Bench ruling it was held after a consideration of all the authorities that the reversioners could be estopped from a further claim to the property by their own relinquishment of what was at that time spes, successionis. It is rather strange that this ruling was not brought to the notice of the learned lower appellate Court as it was dated the 26th January 1923, and he decided this case which was so closely connected with the former on the 4th July 1923. Had he seen that ruling he could not have found as he did that a promise de future cannot be an estoppel.
4. The facts in the present case are not really in dispute. Mt. Pana executed on the same day a deed of gift of a portion of the property which she had received from Mt. Munia in favour of the plaintiffs, and a Will of another portion of the property in favour of Mt. Kamli. The Will was signed by the donees and the deed of gift was signed by Mt. Kamli. No doubt the mere signature by the reversioners of the Will does not amount to a proof that they agreed to the contents: but when the two documents are taken together, the conclusion is irresistible that the plaintiffs not only recognized the right of Mt. Pana to make a gift in their own favour, but also to make a Will in favour of another The learned lower appellate Court has attempted to show that the conduct of plaintiffs does not amount to an estoppel by quoting the argument used by the learned vakil for the other side and criticizing it. I have merely to consider whether as a matter of fact, Section 115 of the Evidence Act applies to this case or not.
To create an estoppel it is necessary that a person shall by his declaration act or admission intentionally cause or permit another person to believe the thing to be true and to act upon such belief.
5. The act of plaintiffs in the present suit was their signature on the two documents on the same day. They certainly signed these documents intentionally, and by doing so they undoubtedly caused Kamli to believe that she had a valid right to the property bequeathed to her by Mt. Pana and to act upon that belief by welling the property to the present appellants. They also by the same act caused the present appellants, in the belief that the property had been legally bequeathed to purchase that property. In my opinion this action of the plaintiffs amounts to a clear estoppel.
6. I therefore allow this appeal with costs on the higher scale in this Court, set aside the order of the lower appellate Court and restore the decree of the Court of first instance with costs throughout.