P.K. Mohanti, J.
1. The unsuccessful plaintiff has preferred this appeal in forma pauperis. The suit was for partition of the disputed properties into two equal shares between the plaintiff and defendant No. 3 and for recovery of possession and mesne profits.
2. The suit properties belonged to the joint family consisting of the plaintiff, his father E. Surya Patra and brother E. Appana Patra. On a reference to arbitration for partition of the family properties, the Arbitrators passed an award allotting l/3rd share to each of the three male members of the family. The suit properties measuring 4.80 acres were allotted to E. Appalamma, the step-mother of E. Surya Patra for enjoyment during her lifetime in lieu of right of maintenance on condition that she would have no power of alienation and that after her death the properties would revert to E. Surya Patra and his heirs. A decree in terms of the award was passed by the Court on 7-4-25 vide Ext. 1. Sometime after the award, the plaintiff, his father and brother apprehended that Appalamma would transfer the entire suit properties to her son-in-law (defendant No. 4). In order to save the properties the plaintiff, his father and brother executed three nominal sale deeds in repect thereof in favour of defendants 1 and 2 on 22-1-36, 18-2-36 and 11-5-36 -- vide Exts. A, B and C. The plaintiffs brother Appanna died in 1943 leaving behind him his son Dukhishyam who is defendant No. 3 in the suit. On 3-3-58, defendant No. 2 sold away his half share in the suit properties to defendant No. 4 by the sale deed Ext, D. Appalamma died on 29-7-63. After her death, defendant No. 1 executed a sale deed in favour of defendant No. 5 in respect of 0.09 acre out of the suit lands. The plaintiff's contention is that the sale deeds -- Exts. A, B and C -- were sham and nominal transactions and that on the death of Appalamma the suit properties reverted to him and his nephew Dukhishyam (defendant No. 3). Upon these allegations, he filed the suit for the aforesaid reliefs.
3. Defendants 1 and 4 filed a joint written statement contending that the plaintiff, his brother and father had a vested interest in the suit properties and they conveyed good title under the sala deeds -- Exts. A. B and C -- for valuable consideration.
4. Defendant No. 5 filed a separata written statement contending that he purchased 9 cents of land from defendant No. 1 for valuable consideration and acquired good title to the same.
5. Defendant No. 6 is said to be a farm servant of defendant No. 4. He did not claim any interest in the suit properties.
6. The suit proceeded ex parte against Defendants 2 and 3.
7. The trial court, on a consideration of the evidence led by the parties, came to hold that the sale deeds -- Exts. A, B and C -- were not sham and nominal transactions; that the plaintiff, his brother and father had contingent interest in the suit properties when they transferred the same to defendants 1 and 2; and that although after the death of Appalamma the suit properties reverted to the plaintiff and defendant No. 3, yet the transferees Were entitled to protection under Section 43 of the T. P. Act. Upon such findings, the plaintiff's suit was dismissed.
8. In course of hearing of this appeal ft was conceded by the counsel for both the parties that the suit properties were given to Appalamma in lieu of maintenance and that she was in possession of the same till her death. It is contended on behalf of the plaintiff-appellant that under the terms of the award Appalamma got a limited estate which was enlarged to full ownership at the commencement of the Hindu Succession Act, 1956.
9. Section 14 of the Hindu Succession Act, 1956, provides as follows:--
'Section 14(1). Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation -- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, of by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as a stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
The legal position is now well settled that Sub-section (2) of Section 14 is confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree.
order or award, the terms of which proscribe a restricted estate in the property. Where, however, the property is acquired by a female Hindu at a partition or in lieu of right of maintenance, it is in virtue of pre-existing right and such an acquisition would not be within the scope and ambit of Sub-section (2), even if the; instrument, decree, order or award allotting the property prescribes a restricted estate in the property -- vide AIR 1977, SC 1944, V. Tulasamma v. V. Sesha Reddi.
10. The award in the present case is not the source or foundation of the right of Appalamma. Her right to be maintained out of the family property was a right in existence prior to the award. The preexisting right being there, the award though it restricts the right of alienation would not fall under Sub-section (2) of of Section 14 and the case would be covered by Sub-section (1) with the result that Appalamma became the absolute owner of such property at the commencement of the Hindu Succession Act, 1956.
11. The plaintiff, his brother and father had only the interest of a reversioner which was extinguished as a consequence of the limited estate of Appalamma being enlarged to full ownership. The interest of a reversioner is a spes successionis within the meaning of Section 6 of the T. P. Act. A transfer of a spes successionis is a nullity and it has no effect in law,
12. Now the question arises whether the suit properties devolved on the plaintiff and defendant No. 3 on the death of Appalamma. Section 15(1) of the Hindu Succession Act provides:--
'15 (1). The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband; XXXXX,'
13. There is absolutely no evidence on the record to show that Appalamma had any son or daughter by the time of her death. Mr. P.V. Ramdas, the learned counsel for the respondents wanted to rely on a statement in para 5 of the plaint to the effect that 'Appalamma had a daughter named 'Sri Devi' who was married to B Lakshman Patra. In the Joint written statement filed by defendants 1 and 4 the allegations made in para 5 of the plaint were denied. These defendants did not plead or lead any evidence that Appalamma died leaving behind her any son or daughter. We are, therefore, not inclined to accept the contention of Mr. Ramdas that Appalamma left behind her a daughter named Sri Devi, The plaintiff and defendant No, 3 being the heirs of the husband of Appalamma, the suit properties devolved on them as provided under Section 15(1)(b) of the Hindu Succession Act.
14. The next question that arises for consideration is whether the transferees-defendants are entitled to protection under Section 43 of the T. P. Act. This section is applicable to a case where a person transfers property to which he has no title on a representation that he has * present and transferable interest therein and acting on such representation, the transferee takes a transfer for consideration and if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not been cancelled and is subsisting. It appears that defendant No. 1 who is a transferee under the sale deeds -- Exts. A to C -- made the following statements in cross-examination:--
'At the time of sale in our favour the plaintiff, his father and brother had no interest in the suit land. There was no delivery of possession to me during the lifetime of Appalamma. On the death of Appalamma, I took possession of the land on the basis of the sale deeds executed in our favour. I have no explanation what for we purchased a property that would come under our possession in the uncertain future. I knew of the award before purchase.'
The above statements clearly indicate that defendant No. 1 knew as a fact that the transferors had no title to the land. There is nothing to show that the transferees were misled by any representation made by the transferors. Section 43 of the T. P. Act is founded on the rule of estoppel and therefore in order to attract the principle of that section it is necessary to show that there has been an erroneous or fraudulent representation. If both parties are aware of the absence of title of the transferor, that will not be a case where there is an erroneous or fraudulent representation. In such a case the rule of estoppel embodied in Section 43 does not apply.
15. It is in evidence that after the death of Appalamma, the transferees haveentered into possession of the suit properties. They have no title to the suit properties and they are liable to be evicted therefrom.
16. The plaintiffs' claim for mesne profits has not been established by any evidence.
17. In view of our foregoing findings, we allow the appeal and set aside the decision of the trial court. A preliminary decree for partition be passed in favour of the plaintiff in terms of the prayer in the plaint. On the plaintiff depositing a sum of Rs. 50/- tentatively towards the fees of a Commissioner, the Court below shall appoint a survey knowing Commissioner to effect partition. The plaintiff's claim for mesne profits is dismissed. He is entitled to costs throughout. The court-fees payable on the plaint and the memorandum of appeal be realised from the plaintiff. A copy of the decree be forwarded to the Collector of Ganjam.
N.K. Das, J.
18. I agree.