H.R. Krishnan, J.
1. This is an appeal by the defendant, now being continued by his legal representatives, from the concurrent judgments of the lower Courts decreeing the suit of the plaintiff for declaration of title and restoration of possession. The main question at this stage is one of law, whether the defendant, having recovered the properties in the suit from third-parties after litigation prosecuted by huh as the guardian of the plaintiff, and continuing in possession as guardian and manager of the plaintiff, can, without discharging his duties as guardian and manager by giving up possession, now be heard to plead that the decree in favour of his ward was illegal, and he is entitled to retain the property as one of the two reversioners.
Secondly, a less important question is, whether the decision of the Courts of that time granting the property to the plaintiff on the basis of a will, can now be challenged because of a law banning the bequests of agricultural lands without the sanction of revenue authorities. The third question, which is one of fact, is, whether there was arrangement between the parties in 1940 by which the lands in suit were actually allotted to the defendant with the consent of the plaintiff; this has been decided by both the Courts against the defendant-appellant, on the finding that there was no such arrangement.
2. Broadly speaking, the facts are common ground. There were three brothers, Nana, Nanji and Dashrath. The defendant Bhila is the son of Nanji while the plaintiff Bhawaniram is the son of Dashrath. At the relevant time, Nana was already dead, as also his son Girdhar, without issue but leaving two widows. The properties in suit are certain agricultural lands about the identity of which there is no dispute, that were before 1920 in the separate share of Nana, partition having already taken place between the three brothers. He executed a will bequeathing those lands (as well as certain other properties with which we are not presently concerned) to Bhawaniram, in those days, a minor.
Upon Nana's death, his widowed daughters-in law refused to give up the properties, whereupon Bhawaniram sued them with Bhila (defendant) as his guardian. The suit being decreed, Bhila acting as Bhawaniram's guardian, took these properties in his possession. For some time after Bhawaniram's majority Bhila was still in possession as the manager of his erstwhile ward. After completing his studies at Indore, Bhawaniram came home in 1940 and called upon Bhila to give back all his properties; the latter refused to give these lands. An assertion of adverse title being thus made, the plaintiff brought this suit for declaration of title and recovery of possession; this was some years later, but within the period of limitation.
3. While the plaintiff took bis stand on the decree obtained by him on the strength of the will in litigation in which the defendant himself washis guardian, the latter, for bis part, set up a twofold defence. Firstly, on facts, that when there was a 'separation' in 1940, there was a re-allotment of the properties by which these properties fell to the lot of the defendant, and certain others including some that had been 'willed' by Nana, fell to that of the plaintiff.
Secondly, in addition, and independently of it, the defence was that since 1908 there was a law in Indore (Circular No. 13 of 1908) making it illegal for anybody to transfer a right of occupancy to another person except by sale and with the written permission of a duly empowered revenue officer. Bequest being a kind of transfer, and there being admittedly no permission, the defendant contended that the will and the decree did not exist in the eye of law; and on Nana's death, his properties were inherited equally by his two reversioners --nephews -- namely, the plaintiff (son of Dashrath) and himself (son of Nanji) and he is entitled to retain these properties as his share in reversion.
4. On the issue of fact whether in 1940 there was a reallotment of the properties between the parties by which the defendant got the suit lands both the Courts held that the defendant's story could not be accepted. He has spoken of a partition but actually, the family had divided long before it in the lifetime of the three brothers. Apart from it, the evidence and the circumstances of the so-called reallotment of land between the parties were not acceptable. Being a finding of fact based on evidence, it cannot be questioned over again in second appeal. The appellant has prayed for amendment of his written-statement and remand because the lower Courts have not understood the word 'partition' used by him in this context in a special sense. There is no force in this and the prayer is refused.
5. The main issue as to estoppel has been considered at length by the lower courts. The position is that the defendant acted as a guardian of the plaintiff and recovered these properties from third parties and has continued in their possession for some time as guardian and later on as manager. That litigation itself had been fought upto the High Court of that time which decreed the plaintiff's title and possession of land on the basis of Nana's will. Whether or not there was a law forbidding such transfers, the defendant got these properties in the fiduciary capacity of guardian of the plaintiff and is continuing to retain them as the manager, Now, he refuses to return them, and claims that the decree he obtained in favour of his cousin is a nullity and these represent his half share in the reversion to Nana in the absence of a valid testament.
Both the lower Courts have decided that having obtained and been allowed to retain the properties in the fiduciary capacity of a guardian and a manager, the defendant is estopped from setting up an adverse title without restoring the property to the plaintiff as the rightful owner. Whether after restoring the properties to the plaintiff, the defendant can seek to recover half of Nana's properties by a separate suit, and whether the Court should consider the operation of Circular No. 13 of 1908 are questions that do not arise at this stage. Here theposition is that without discharging himself from be fiduciary burden of guardianship and management the defendant is asserting that the plaintiff does not have a legal title.
6. Stated thus, the question is clear; both, in the first appellate court and here, there have been arguments as to whether the defendant is estopped;he avers that this is an issue of law and the mere fact of his having committed a mistake in regard to his legal rights in the old litigation docs not estop him from claiming now. The plaintiff's position is that whatever the law in 1920 in regard to the permissibility or ban on bequests, the defendant does not claim the property as a reversioner after vacating it and ceasing to be the manager. Certainly, he did not raise this in that litigation where the Courts decided in favour of the plaintiff. A body of case law has been cited by the appellant to the effect that there is no estoppel against the statute; while beingabsolutely true, they have no application here. This is not a suit by him to claim the properties from his erstwhile ward.
7. Like all forms of estoppel, the present one set up by the plaintiff against the defendant is ultimately based on representation. It is also a form of estoppel analogous to what is contained in Section 116 of the Evidence Act, Just as a tenant or licensee is barred from questioning the title of his landlord or licensor during the currency of the tenancy or license, so too, during the currency of the management or guardianship, the manager or guardian, cannot question the title of the principal or ward. After discharging the fiduciary capacity he can Certainly, if otherwise competent, question it but not till then. Among the rulings cited by the respondent we have Srinivasa Moorthy v. Venkata Varada Aiyangar, ILR 34 Mad 257, which has been followed in a large number of cases by different High Courts. There, the defendant obtained property on the basis of a will and realised the assets under the grant. Subsequently, he repudiated the will and claimed the property of the testator by survivorship. It was held
'No person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself.'
The word 'trustee' in this and similar rulings, has been used in a wider sense to describe one who has by his own conduct acquired a position of confidence and answerability to the real owner. Such a person cannot, without discharging the burden and relieving himself of the trust, set up an adverse title.
8. The law of estoppel in our country is generally defined in Chapter VIII of the Evidence Act. But like most statutes setting out broad principles of equity and fairplay this Chapter is not exhaustive, nor indeed does it purport to be so. In practice all forms of estoppel can be brought under Section 115, by a wide interpretation of the words 'declaration, act or omission'. Besides, though section 116 speaks of tenant and the landlord on the one hand and the licensor and the licensee on the other, these two are only illustrative of such relations where one man may be going into possession of property on the acceptance of another's title. Precisely, thesame principles apply to all such relations, such as of guardian and ward, agent and principal, of master and servant. As held in Ajitulla v. Bilati Bibi, AIR 1932 Cal 383(2):
'The person who has been let into possession as a tenant is estopped from denying his lessor's title without openly surrendering possession. The basis of this particular principle is the fact of the letting of the tenant into possession which creates the estoppel, and hence neither tenant nor any one claiming by him can dispute the landlord's title. Sections 115 to 117 are not exhaustive and the principle of estoppel contained in these sections may be applied by analogy to parties not mentioned therein. The whole basis of the doctrine being the letting into possession, it can be applied to the case of a licensee or an agent let into possession.'
The same has been followed in Asaram v. Ludhesh war, AIR 1938 Nag 335 (FB) and Savitribai v. Sidu Arjun, AIR 1946 Nag 108. The result is that the defendant was estopped as long as he retained the property which the plaintiff had allowed him to retain as guardian and manager from claiming that he had taken that as reversioner.
9. Finally, it has been urged on behalf of the defendant that the will executed by Nana was invalid under the law contained in Circular No. 13 of 1908 and the Courts of Indore had all gone wrong in allowing the plaintiff's suit which the defendant himself had filed as guardian. For one this question does not arise here in any event; and for another, whatever the subsequent decisions of Courts be in other cases, the highest Court of that time did hold in this connection that the will was competent, and granted the properties to the plaintiff. The defendant was in that suit guardian of the plaintiff; having notice he did not contest and did not urge that the testator was legally incompetent to make the bequest. That decision, as a final decision by the highest court of that time prevails, and had been in force for 25 years before the defendant tried to repudiate it. It cannot be challenged at this stage.
10. The second appeal is accordingly dismissedwith costs and pleader's fee according to rules payable by the defendant-appellant to plaintiff-respondent.