1. These two appeals arise out of two suits which were tried separately by two Subordinate Judges of Budaun. But as the claims were based upon similar causes of action and relate to the same property, and as the same questions arise for determination in both cases the two appeals have been heard together and may be disposed of by one judgment.
2. The following pedigree will serve to show the nature of the claim put forward in either suit:
(For pedigree see next page.)
3. The property in respect of which the two suits were brought was admitted in the Court below to have been at one time the absolute estate (stridhan) of a lady named Radhika Rani, who was the mother of Mt. Jhuna Kuar, wife of Bhola Prasad.
4. On the death of her mother the property descended to Mt Jhuna Kuar who, on the 13th August 1899, executed a will (Ex. 1, page 20, of the paper-book of F.A. No. 324 of 1924). She claimed to be the full owner of the property and disposed of it in favour of her husband Bhola Prasad and her three sons, Ishri Prasad, Jainti Prasad and Ram Prasad.
5. The construction of this will is in controversy in both the appeals now before us; for the present it is sufficient to say that the plaintiffs in the two suits are founding their title upon the will. Jhuna Kuar died a few days after this will had been executed, and it is an admitted fast that her husband Bhola Prasad then came into possession of the property.
6. In the year 1902 Bibi Durga Kuar, the daughter of Jhuna Kuar, put forward a claim to this property on the ground that she was entitled to it by inheritance from her mother. She disputed the right of her father Bhola Prasad to get the property under Jhuna Kuar's will, and she was, apparently, about to bring a suit to enforce her claim when she and her father agreed to submit their respective claims to arbitration by a deed executed on the 10th August 1902 (Ex. 11, page 21, paper-book of F.A. No. 324 of 1924). On the 14th August 1902 an award was delivered, which declared that Bhola Prasad was the owner of the lands now in dispute under the will of Jhuna Kuar. The arbitrators, however, were of opinion that Bhola Prasad should
Bhola Prasad= M. Mt. Jhunua Kuar
d. 1921. d. 1899.
| | | |
Ishri Prasad Jainti Prasad Ram Prasad Mt. Durga
d. 1917. d. s. p. 1911. Plaintiff. Kuar.
Pitam Prasad Gaya Prasad
be generous towards his daughter and they awarded her a 3-biswa share in the item of landed property situated in M. Dudhari.
7. Subsequently, and before his death, which took place in 1921, Bhola Prasad lost the rest of the immovable property, which came to him by the will. It passed into the hands of Ganga Din and his wife Mt. Dulari, who are the contesting defendants in both the suits and are in possession. The first of the two suits, the one which has given rise to First Appeal No. 324 of 1921, was brought by Ram Prasad, the only surviving son of Bhola Prasad. He put forward the case that Bhola Prasad took only an estate for life under the will of Jhuna Kuar, and that he (plaintiff), as remainderman, was entitled to possession after his father's death.
8. The defence to the claim was that Bhola Prasad was not a mere life tenant of the property, but was the absolute, owner. It was pleaded first, that the will gave Bhola Prasad an absolute estate and that there was no valid gift over to the sons. In the next place it was pleaded that Bhola Prasad had acquired an absolute estate by adverse possession. This defense was based upon the assertion that Jhuna Kuar herself having succeeded by inheritance to her mother's stridhan had no more than a life-interest and could not dispose of the property by will. The real heir, after Jhuna's death, was her daughter, Mt. Durga Kuar, and, therefore, Bhola took possession without title, and, having been in for more than twelve years, had acquired a full title by prescription.
9. Again it was pleaded that the arbitration proceedings in 1902, to which we have already referred, constituted a 'family settlement' which was binding upon the plaintiff Ram Prasad, and which conferred an absolute title upon Bhola Prasad; and lastly it was suggested that the suit was barred by estoppel, both under Section 41, Transfer of Property Act and Section 115, Evidence Act.
10. The Subordinate Judge overruled these defences and gave Ram Prasad a decree for one-half of the property in suit. His decision, in substance, was that Bhola Prasad having entered under the will was estopped from denying the title of his testatrix. He found that the will gave Bhola Prasad only a life-interest and that there was a gift over by way of remainder to the sons of Bhola Prasad, which neither Bhola nor the defendants who are his successors-in-interest could be permitted to dispute.
11. One of the three sons to whom an estate in remainder was given had died without issue in; 1911: his name was Jainti Prasad. His vested interest, therefore, passed to his two brothers Ishri and Ram Prasad enlarging their shares to one-half each, Ram Prasad was, therefore declared to be entitled to a half-share in the property in suit and a decree was made accordingly.
12. After Ram Prasad's suit had been decreed, the two sons of Ishri Prasad claim the other half of the property They too founded their case upon the will of Jhuna Kunwar, but their suit failed. The Subordinate Judge who dealt with their suit was of opinion that the arbitration award of 1902 put these plaintiffs out of Court. He held that the arbitration proceedings amounted to a family settlement under which the rightful owner, i.e. Mt. Durga kunwar, gave the bulk of the property of her father, Bhola Prasad who thereupon acquired an absolute title.
13. First Appeal No. 410 of 1925 is directed against this decree in the second suit. The plaintiffs one the appellants and maintain that they ought to have been given a half-share on the same grounds as ram Prasad, their uncle, got a half-share in the earlier suit.
14. To come now to the questions for determination in the two appeals it is to be observed first that it is common ground that Mt. Jhuna Kunwar had not interest in this property extending beyond her lifetime. It was the stridhan of her mother Radhika Rani, and descended, in the first instance, to Jhuna Kunwar who took merely the ordinary Hindu female's estate. On her decease the property ought to have descended in turn to her daughter Durga Kunwar with a similar estate. After Durga Kunwar's death (she is still alive) the son of Jhuna Kunwar, that is Ram Prasad, would take as, heir if he survived his sister. Bhola Prasad, the husband of Jhuna Kunwar, had not title whatever to this property.
15. The situation, then, is that Jhuna Kunwar with only a life estate in the property, but believing herself to have an absolute estate which she could device made this will of the 13th August 1899 which purported to confer upon her husband an interest which was to take effect immediately upon her death. It is not to be doubted that Bhola Prasad did enter under the will. This is quite plain from the recital contained in the deed by which he aud Durga Kunwar agreed to submit their dispute to arbitration: (cf. Ex. 11, p. 21 paper book F.A. No. 324 of 1924). We cannot accept the contention that Bhola Prasad got possession otherwise than under the will.
16. As to the construction of the will both Subordinate Judges have held that Bhola Prasad took nothing more than a life estate and in our opinion that decision is correct. When the document is read as a whole there can be not doubt as to the intention of Jhuna Kunwar. She first declares that if she dies before her husband, he will be the owner of her entire property, but she then goes on to say that.
he may enjoy the income from the said property up to the time of his death.
and that after his death her sons will he entitled to the estate. The will concludes with a direction that in no event shall Bhola Prasad's issue by a second wife in case he marries again take any portion of Jhuna Kunwar's estate.
17. It is plain beyond all argument therefore that nothing more than a life interest was conferred upon Bhola Prasad.
18. As for the arbitration award, which settled the dispute between Bhola Prasad and Durga Kunwar in 1902, it can have no effect upon the interests of the plaintiffs in the present suits. They were no parties to the proceedings and are in not way bound by them. The case was not one of a family settlement. Bhola Prasad's two eldest sons, Ishri and Jainti, were alive then and of full age (see the recital in the will of 1899), and it is not possible to conceive that there could be any arrangement by way of family settlement to which they were not parties.
19. The Subordinate Judge who tried the second suit was wrong in holding that the award could affect the plaintiff's rights either a s a family settlement or in any other way.
20. The matter in dispute therefore is reduced to a narrow compass. There are two sets of plaintiff's setting up title to property under a will. Admittedly thief testator had not devisable interest in the property and the plaintiffs can succeed only by showing that the defendants who derive their title from Bhola Prasad are estopped from denying the right of Jhuna Kunwar to make this will.
21. The Subordinate Judge who decided the earlier of the two suits was of opinion that the defendants were so estopped. The Other Subordinate Judge brought that, if Bhola Prasad's title was derived from the will them he and his representatives in interest would be so estopped but as already explained he came to the conclusion that Bhola Prasad's title was acquired under the award and no under the will-a conclusion which we consider erroneous. The first Subordinate Judges was, in our opinion, clearly right. The case is covered by the rule laid down in the leading case of Board v. Board  9 Q.B. 48, namely that a person who claims under a will and retains possession under the will, is estopped (from denying its validity as against everybody interested in the will.
22. There has been much caselaw on this subject, and in the course of the arguments we have been referred to practically all the authorities in the English reports.
23. We think the law is correctly reproduced in the following passage taken from spencer Bower on Estoppel by Representation para. 374:
One who obtains, or accepts, or retains possession of property under a will and who neither has nor professes to have, any title thereto except under the will is estopped as against any remainderman or other person claiming under the same will from asserting that the testator was not entitled to such an estate in the property as he purported to devise or bequeath and generally, from setting up any title to the property in himself which is independent of and adverse to the will, or any interest of a different kind from that which he would have taken if the property had passed by the will as it was impliedly represented by him to have passed. The above formula, it will be observed is confined to cases where the party not only professes to have, but actually has no title to the property except under the will.
24. It is this rule which has to be applied to the case now before us. We have already explained that when his wife died Bhola Prasad had not and could not have had any title to the property except under the will made by his wife. The person entitled in law to the property on Jhuna Kunwar.
25. Bhola Prasad as we have said entered into possession under the will and the consequence is that he and those who claim under him are debarred now from asserting that Jhuna Kunwar was not entitled to such an estate in the property as she purported to device. Nor can the defendants now representing Bhola Prasad set up any title in him or themselves independent of and adverse to the will. The plaintiffs, who claim under the same will as remaindermen (sic) are an title to the benefit of this estoppel.
26. It has however, been strenuously argued that the rule in Board v. Board  9 Q.B. 48 should not be applied here. It is said that the principle of estopped laid down in that case has been held not to apple to a certain typed of case of which Paine v. Jones  18 Eq. 82 is an example.
27. This question is discussed by Stirling, J., in his judgement in Dolton v. Fitzqerald  1, Ch. 440. Speaking of the cases which have arisen under will he divides them into two classes.
28. The first is where a testator having either not title or an imperfect title to land devises it by specific description to or upon trust for a person for life with remainders over. Board v. Board  9 Q.B. 48 is a case of this class where the testator being simply a tenant by courtesy, had nothing to devise. In such cases the doctrine of estoppel is applied and, according to Sterling, J., no doubt has over been thrown upon that class of case.
29. The second class is the one where a testator having a good title to property has not effectively devised it and the tenant for life of the property effectively devised by the with has entered just as it had been included in a valid devise and acquired by possession a title against the heir. Such cases of which Pains v. Jones  18 Eq. 82 is a leading example, arose most frequently under the law as it stood prior to the Wills act when a testator was incompetent to devise land acquired subsequently (sic) points out that there is a conflict of opinion regarding the application of the doctrine of estoppel in cases of this type.
30. However that may be it is manifest that the case we are not considering does not fall within this second class it clearly falls within the first. It is not pretended that Jhuna Kunwar had a good title to this property, that is, a title which she could effectually devise; and that the failed to dispose of it by will effectually. On the contrary the case is that she had a defective or limited title which she had a defective or limited title which she disposed of on the assumption that it was absolute and perfect. That is the case of Board v. Board  9 Q.B. 48 where the testator, a mere tenant by the courtesy, assumed that he; had a devisable interest. He created a life-estate in favour of his daughter with remainder to his grandson. The daughter entered under the will, and it was held that the defendant claiming through her was estopped as against the plaintiff, the assignee of the remainderman, from disputing the validity of the will.
31. For these reasons we hold that in the two suits now under appeal the plaintiffs were entitled to succeed; there was in neither case any valid defence to the claim.
32. In First Appeal 324 of 1924 judgment of the trial Court was in favour of the plaintiff and was right. This appeal therefore fails and is dismissed with costs.
33. In First Appeal 410 of 1925 the claim was dismissed wrongly by the Subordinate Judge. The appeal is therefore allowed, the decree of the Court below is sat aside and the suit is decreed with costs to the plaintiff in both Courts.
34. As First Appeal 410 of 1925 has been decreed, the result is that the case will go back to the Court of first instance for determination of the mesne profits which were claimed in the plaint.