John Edward Power Wallis, Kt., C.J.
1. This is an appeal from a decree of the District Judge of Ganjam dismissing a suit brought by the plaintiff for the specific performance of a contract entered into on the 11th May 1894 by the defendants and their father who were at that time reversioners of the Urlam estate by which they undertook to sell the estate to the plaintiff and to execute a proper sale-deed in his favour when the time came for putting him in possession. The learned District Judge now Mr. Justice Kumaraswami, has dismissed the suit on the ground that such a contract by reversioners is prohibited by Section 6 of the Transfer of Property Act and is also void under Section 23 of the Indian Contract Act as tending to defeat the provisions of the law contained in the aforesaid section of the Transfer of Property Act. The question is undoubtedly one of great importance and Mr. S. Srinivasa Aiyangar has contended forcibly before us that contracts of this kind were enforceable both in England and in India before the Transfer of Propeity Act and that Section 6 was not intended to affect them.
2. There can be no doubt that before the Act, in England and in India, a mere chance of succeeding to an estate was a bare-possibility, incapable of assignment, Jones v. Roe I.L.R. (1881) C. 138 In re Ramons I.L.R. (1892) B. 232 and Rumachandra Tantra Das v. Dharmo Narayan Chucker burtty 17 B.k 232 where it was held that the interest of an heir under the Hindu Law expectant on the death of a widow in possession was not properly liable to attachment and sale in execution. It was nevertheless held in England that in the case of such expectancies equity would enforce a contract to convey the estate when it fell in. This was decided in the time of Charles I in Wiseman v. Con Roper (1645) Ch. Ref. 158 and notwithstanding certain observations of Lord Eldon in Carlton v. Leightot (1805) 3 Mer. 667 and Harwood v. Tooke (1812) 2 Sim. 192 was affirmed in Wethered v. Wethered (1812) 2 Sim. 183 and Lyde v. Mynn (1828) 1 Myl. & K. 683 and has since been treated as settled law. Mr. Srinivasa Aiyengar contends that the law in India was the same, and that the Transfer of Property Act has not made any difference and he refers to 2 B.L.R. 11, where their Lordships with reference to such an expectancy speak of ' a contract to be performed in future and upon the happening of a certain contingency of which the purchaser may claim a specific performance if he comes into court showing he has done all he was bound to do. The other side refer to a passage in Mussamat Oodey Koowar v. Mt. Ladoo (1870) 13 M.I.A. 585 where their Lordships observed that a certain petition by which the petitioner renounced her claim to succeed on the death of a kinsman did not operate as a conveyance or a contract first because the petitioner had at the time no interest in the property and secondly because the petitioner did not show that she was contemplating any conveyance, but these observations do not amount to a direct ruling as to a contract to convey when the estate came into possession. It was apparently with reference to this case that their Lordships observed in a passage of an unreported judgment cited in Ram Nirunjan Singh v. Prayag Singh I.L.R. (1881) C. 138 that it went far to show that the principle of English Law which allows a subsequently acquired interest to feed, as it is said, the estoppel does not apply to Hindu conveyances.' It was held by the Calcutta High Court in that case following the English authorities that a contract between the expectant heirs to divide the estate when it fell in, in a particular way, was enforceable and this was treated as well established by Sir Charles Sargent in Gitabai v. Balaji Keshav I.L.R. (1892) B. 232 at a time when the Transfer of Property Act had not been extended to Bombay.
3. Lastly in Nazir Ul Hag v. Faryaz-ul-Rahman I.L.R. (1911) A. 457, the learned Judges were of opinion that such contracts were not affected by the provisions of Section 6 citing the decision in Bam Nirunjan Singh v. Prayag Singh I.L.R. (1881) a. 138 which was before the passing of that Act, but the point was unnecessary for the decision.
4. It cannot be said that there is direct authority in India the other way, but the respondents rely on Sumsuddin v. Abdul Hussain I.L.R. (1906) B. 166 and Dhoorjeti Subbayya v. Dhoorjeti Venkayya I.L.R. (1907) M. 201 as to the scope of S. of 6 of the Transfer of Property Act. That section provides that property of any kind may be transferred except as provided by the Act itself or any other law for the time being in force and that (a) the chances of a heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other mere possibility of a like nature cannot be transferred.' In the former case Jenkins C.J. and Beaman, J. held a release by a Mahomedan woman of her expectancy of succeeding to a share of her father's estate was void as opposed to the provisions of the section and could not as in England, be enforced in equity when the reversion fell into possession. In the later decision to which I was a party it was held that a mortgage by an expectant heir of his chance of succession was void under Section 6 and could not be enforced by virtue of Section 43. This is in accordance with the observations of Lord Davey delivering the judgment of their Lordships in Sham Sunder Lal v. Achan Kunwar I.L.R. (1898) A. 80 and with the observations of their Lordships in the judgment cited in Bam Nirunjan Singh v. Prayag Singh I.L.E. (1881) A 138. It is however contended by Mr. S. Srinivasa Aiyangar that these decisions do not affect the present point, and that in granting specific performance the court will not be giving effect to the equitable doctrine of feeding the estoppel which he admits may be inapplicable, but merely enforcing a contract to do something in future which will not be illegal at the time it is done, viz. to convey the estate after it has fallen into possession.
5. The other side rely on the ruling of Jenkins C.J. that under Section 6. it was not intended to allow of the transfer of a mere chance of succession either at law or in equity and if this be so, they contend that the learned District Judge was right in holding that the contract was void under Section 23 of the Indian Contract Act on the ground that if permitted it would defeat the provisions of Section 6 (a) of the Transfer of Property Act.
6. On this question, looked at apart from authority, I should not entertain any doubt, as it seems futile to forbid such transfers of expectancies if contracts to transfer them are to be enforced as soon as the estate falls into possession. In these circumstances it seems to me that it is our duty to give effect to what we consider plain provisions of our statute law instead of following a course of English decisions, which would appear to have been based from the very first on a regard for long established practice rather than on principle, and to have failed to commend themselves to Lord Eldon. For these reasons I think the District Judge was right and that the appeal must be dismissed with costs. Memorandum of objections is dismissed with costs.
7. The question in this appeal is whether specific performance may be granted of an agreement which has been entered into by an expectant reversioner to transfer certain properties if and when the properties should devolve upon him as reversioners.
8. It was not seriously suggested that there was any rule of Hindu Law by which the rights of the parties should be determined, to the exclusion of Section 6 (a) of the Transfer of Property Act. Some cases that were relied upon by the appellant in reference to this point were decided before the Transfer of Property Act came into force, and therefore proceeded on the rule of English Equity which enforces specific performance of such agreements they do not enunciate any specific rule of Hindu Law which is to prevail unaffected by the Transfer of Property Act (Section 2 (d) of the Act). On the other hand in Sham Sunder Lal v. Achhan Kunwar there is a dictum of the Privy Council to the contrary effect, which seems to have been given effect to in Nund Kishore Lal v. Kanu Ram Tewary I.L.R. (1902) a 355, Manickkam Pillai v. Ramalingam Pillai I.L.R. (1905) M. 120 and Sumsuddin v. Abdul Hussain I.L.R. (1903) B. 165.
9. It seems to me therefore that the appeal must be decided with reference to the Transfer of Property Act. The effect of Section 5 and Clause (a) of Section 6 so far as material is that an act by which a person-purports to convey in present or in future the chance of an heir-apparent succeeding to an estate does not operate to transfer the chance. The argument of the appellant was two-fold (1) that there is no attempt in the present case to convey any such chance that what was done was an agreement to convey something in future, and (2) that the subject of the agreement was the property and the rights after they were to become vested, not merely a chance of succeeding as an heir apparent.
10. This argument does not seem to me to be sound when property is conveyed in future there is said to be a transfer of property no less than when it is conveyed in present (Section 5 of the Transfer of Property Act), and the Legislature has provided that the chance of an heir apparent cannot be the subject of conveyance in present or in future. An agreement therefore to convey in future such a chance cannot be considered a valid contract because it is an agreement to transfer that which the law says is incapable of transfer. The 'object' of such an agreement is of such a nature that if permitted, it would defeat the provisions of Section 6 (a) of the Transfer of Property Act (Indian Contract Act, Section 23).
11. Can it then be said that what was agreed to be transferred here was not such a [chance, but something else? The Transfer of Property Act does not permit a person having expectations of succeeding to an estate as an heir, to transfer the expectant benefits; when such a transfer is purported; to be made an attempt is in effect made by two persons to change with each other their legal possession, and attempt by the one to clothe the other with what the legislature refuses to recognise as rights, but styles as a mere chance incapable of being transferred. It would be defeating the provisions of the Act to hold that though such hopes or expectations cannot be transferred in present or future, a person may bind himself to bring about the same result by giving to the agreement the form of a promise to transfer not the expectations but the fruits of the expectations, by saying that what he has purported to do may be described in a different language from that which the legislature has chosen to apply to it for the purpose of condemning it.
12. When the legislature refers to the transaction as an attempt to transfer a chance, it indicates the true aspect in which it requires the transaction to be viewed. The alleged transferor never purports to transfer a chance eo nominee bat the legislature by the terminology it has adopted has in effect laid down that until the, expectant heir actually succeeds to the inheritance he has no right but a mere chance of succeeding and that when he purports to deal with the subject of his expected inheritance he in fact deals only with the chance whatever be the name by which he chooses to designate it.
13. It seems to me to be unnecessary to deal with the English cases which have been cited to us as we must guide ourselves by the provisions of the Act of the Legislature. It was pointed out to us that Samsuddin v. Abdul Hussain I.L.R. (1906) B. 165 has been dissented from : see Nasir-ul-Haq v. Faizaz-ul-Rahman I.L.R. (1911) A. 457 and Mahomed Hashemet Ali v. Kaniz Fateema (1915) 18 All. L.J. 110 and inasmuch as Shamsudin's case I.L.R. (1906) B. 165 purports to proceed on rules which must be applicable to Hindus as well as Mussalmans it is argued that the decision is inconsistent with the well-recognised principle that a Hindu reversioner may empower a widow to alienate property in which she has only a life estate. That principle has however been supported on the ground that the reversioner's consent furnishes evidence of necessity or that the reversioners in effect release their claim, and the Allahabad Court seems to proceed on the basis that releases, or relinquishrnents ought (contrary to the decisions in Shamsuddin's case I.L.R. (1906) B. 165 to be governed by a different rule from that applicable to transfers. On these points it is not necessary for me to express any opinion as we have not to deal with a relinquishment.
14. I agree therefore that the agreement cannot be enforced, and the appeal should be dismissed with costs. The memo randum of objections is also dismissed with costs.