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Sheikh Muhammad Ismail Vs. Sheikh Abdul Gafoor and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in4Ind.Cas.488
AppellantSheikh Muhammad Ismail
RespondentSheikh Abdul Gafoor and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 32 and 34 - suit against a benamidar--real owner made party--nature of suit not changed--objection as to non-joinder after the first hearing--earliest opportunity--waiver--evidence act (i of 1872), section 115--estoppel--intention an essential element--benami purchase--real owner not estopped against pre-emptor--pre-emption. - - , was satisfied, see r. best on evidence p......alleged that she was not the real owner and purchaser of the property in suit but that her husband hamid husain was the real purchaser. on that very day hamid husain, soghra begum's husband, applied to be made a party to the suit. his application was granted, and on the 21st of april, 1908, he put in a written statement to the effect that he was the real purchaser of the property in suit, that soghra begum was a. mere benamidar, and that the pre-emptor was not entitled to succeed inasmuch as hamid husain was a co-sharer in the village. the court of first instance finding hamid husain to be the real purchaser, dismissed the claim, on appeal by the plaintiff the lower appellate court confirmed the decree of the court of first instance finding that hamid husain was the real purchaser and.....
Judgment:

Karamat Husain, J.

1. The facts of the case are briefly these: one Abdul Ghafoor on the 21st of December 1906 sold his share to Musammat Soghra Begum. She admittedly was not a co-sharer in the village. The plaintiff Muhammad Ismail instituted a suit for pre-emption on the 20th December 1907. On 30th March, 1908, Soghra Begum filed her written statement in which she alleged that she was not the real owner and purchaser of the property in suit but that her husband Hamid Husain was the real purchaser. On that very day Hamid Husain, Soghra Begum's husband, applied to be made a party to the suit. His application was granted, and on the 21st of April, 1908, he put in a written statement to the effect that he was the real purchaser of the property in suit, that Soghra Begum was a. mere benamidar, and that the pre-emptor was not entitled to succeed inasmuch as Hamid Husain was a co-sharer in the village. The Court of first instance finding Hamid Husain to be the real purchaser, dismissed the claim, On appeal by the plaintiff the lower appellate Court confirmed the decree of the Court of first instance finding that Hamid Husain was the real purchaser and that, therefore, the plaintiff had no cause of action. The plaintiff has preferred a second appeal to this Court, and the following points have been taken in the memorandum of appeal: (1) that Hamid Husain ought not to have been made a party to the suit as he had no community of interest with Soghra Begum; (2) that the making of Hamid Husain a party to the suit completely altered the aspect of the case to the prejudice of the plaintiff; and (3) that Hamid Husain by obtaining a sale in favour of a stranger is estopped from stating that he is the real purchaser and a co-sharer. All the three points are new and were not taken in the appeal to the lower appellate Court. But as the points were of importance, I allowed the learned Vakil for the appellant to argue them. In support of the first point ho relies upon the following remarks in Naraini Kuar v. Durjan Kuar 2 A. 738 at p. 743: 'But now reading, as I think one should, Sections 28,29 & 32 of Act (X of 1877) together, the term questions involved in the suit' must be taken to mean questions directly arising out of, and incident to, the original cause of action, in which, either in character of plaintiff or defendant, the person to be joined has an identity or community of interest with that party in the litigation on whose side he is to be ranged. I do not lay this down as an irrefragable rule by which applications under Section 32 of Act X should be determined; for cases may arise similar to Saroda Pershad Mitter v. Kylash chander Banerjee 7 W.R. 315 and Kaliprasad Singh v. Jainarayan Roy 3 B.L.R.A.C. 24; 11 W.R. 361 but in the multitude of instances it will be a useful test to apply in deciding whether the presence of parties is necessary to enable the Court effectually and completely to adjudicate and settle the questions involved in the suit. I entirely agree with the remarks of Pontifen, J. in Mahomed Badsha v. Nicol Fleming & Co. 4 C. 355; 2 C.L.R. 233.' With reference to the above remarks, the learned Vakil for the appellant says that Hamid Husain had no community of interest in the suit for pre-emption either with the plaintiff or with the defendant. I am of opinion that the remarks of the learned Judges in Naraini Kuar v. Durjan Kuar 2 A. 738 at p. 743 do not cover the case of a real owner who applies to be made a party to a suit brought against the benamidar. When a suit is instituted, and the defence is that the defendant is a benamidar, the presence of the real owner before the Court becomes, in my opinion, necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit In Sita Nath Shaha v. Nobin Chander Roy 5 C.L.R. 102 it was held 'that where a suit is brought in the name of benamidar only, the Court ought to direct that the beneficial owner should be made parties.' In Bhola Pershad v. Ram Lall 24 C. 34 it was held that Section 82 was wide enough to meet every case of defect of parties. In this connection it is further contended by the learned Vakil for the appellant that the application was made after the first hearing. In answer to this the learned Vakil for the respondents says that the objection did not exist at or before the first hearing and could not have been made or waived, and that as it was made at the earliest opportunity after it came into existence, the spirit of Section 34, C.P.C., was satisfied, see R. and N. Modhe v. S. Dongre 5 B. 609. This, in my opinion, is a complete answer to the contention of the learned Vakil for the appellant.

2. As to the second point, it is enough to say that the adding of the real purchaser, Hamid Husain, as a party to the suit did not convert the suit from one character into another.

3. As to the third point, the learned Vakil for the appellant argues that Hamid Husain by virtue of obtaining a sale-deed in favour of his wife, who admittedly is not a co-sharer in the village, is estopped from setting up the fact of his being a co-sharer in the village as a defence to the suit for pre-emption against his wife and himself. He, on the authority of Section 115 of the Indian Evidence Act, contends that when one person, by his act or omission intentionally causes or permits another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed to deny the truth of that thing in any suit or proceeding between himself and such other person or his representative. According to him, for the operation of an equitable estoppel, two elements only are necessary: The first is that a person should act in a certain way, or omit to act in a certain way, or conduct himself in a certain way, and the other is that another person, on the basis of such act, omission or conduct, should, alter his position. If these two elements according to him, exist, then the person who acted, omitted to act or behaved in a certain manner must be estopped from denying the truth of that thing which he caused the other person to believe. The learned Vakil says that besides the above two elements, it is not essential that the act, omission or conduct must have been intended to be acted upon by the person who alters his position on the basis of the act, omission or conduct. In other words, if A acts, omits to act, or conducts in a particular manner towards B without any intention that C should act and alter his position on the basis of such act, omission, or conduct, A will be estopped not only against B but against C also if C happens to alter his position on the basis of A's act, omission or conduct. The learned Vakil for the appellant has not been able to cite any authority directly bearing upon this point. He relies upon the words of Section 115 of the Indian Evidence Act and upon the rulings of their Lordships of the Privy Council in Ram Coommar Koondoo v. MacQueen 11 B.L.R. 46; 18 W.R. 166; I.A. Spp. Vol. p. 40 and Sarat Chunder Dey v. Gopal Chunder Laha 19 I.A. 203; 20 C 296. I find myself unable to hold that in order to estop a person from denying the truth of his allegations, an intention that they should be acted upon by the person who takes advantage of them is not necessary to be proved. The law of estoppel in British India, as has been remarked by their Lordships of the Judicial Committee in Sarat Chunder Dey's case 19 I.A. 203; 20 C 296, is not different from the law of England on the subjects. Their Lordships say: 'The learned Counsel, who argued the present case on either side, were agreed that the terms of the Indian Evidence Act did not enact as law in India anything different from the law of England on the subject of estoppel and their Lordships entirely adopt that view.' Coming to the law of England. I feel no doubt that estoppel affects only parties and privies. 'In general estoppel only affects parties and privies to the act working the estoppel. Strangers are not bound by them and can not take advantage of them, Co. Litt. 352A; Com. Dig. Estoppel B. & C. When, however, the record of an estoppel runs to the disability or legitimation of a person, strangers shall both take the benefit of and be concluded by that record; as in the case of outlawry, ex-communication, profession, attainder of praemremre, of felony &c; Co. Litt. 352 B. But a record concerning the name, quality, or addition of a person has not this effect; Id. Best on Evidence p. 433, 10 ed. Taylor on Evidence, Vol. I, p. 88 S., 90 (9th Edition) says: 'In technical language estoppels are only binding upon both parties and privies.' In Pickard v. Sears 6 A. & E. 469 at p. 474 the law was laid down in the following terms: 'But the rule of law is clear that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.' In Carr v. The London and North-Western Railway Co. 10 C.P. 307 ordinary definitions of estoppel in pais are given at pages 316 and 317. One of the propositions set forth there is that if a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the fact's were as represented. The English authorities to which I have referred above leave no doubt in my mind that a person who makes certain representations of facts must do so with an intent that the person, who wishes to take advantage of those representations, should act upon such representations to his damage. In the absence of such intention there can be no estoppel. When a person is not intended to alter his position on the basis of a representation to his prejudice, he can not plead estoppel Munsur Ali v. Haidar Husain A.W. N (1884) p. 128 rules that a father who fictitiously sells a house to his son is not estopped from alleging against the pre-emptor that the sale was fictitious. Benami transactions are recognised in India and in the case before me there is nothing to show that Hamid Husain, when he purchased the property in suit in the name of his wife did so with an intent to induce the pre-emptor to believe that the purchaser was not a co-sharer in the village, and that in consequence of such belief induced by the conduct of Hamid Husain the pre-emptor has altered his position to his own prejudice.

4. For the above reasons I dismiss the appeal with costs.


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