Kunhi Raman, J.
1. The plaintiff is the appellant. The question of law arising in this case relates to the legal effect of a partition made as between two reversioners during the lifetime of a Hindu widow and before the reversion had opened.
2. To appreciate the contention of the appellant's learned advocate it is necessary to advert briefly to the facts of the case: The following pedigree shows the relationship between the parties:
Arungugha Padayachi|___________________________________________________| |Ranga Padayachi died issueless Alaga Padayachi(Wife Annammai who died in 1930) |____________________________| |Sadasiva Padayachi Adimoola Padayachi(m. Annammai 2nd Deft.) (Plaintiff).| Samalappa Padayachi(wifeKasi Ammal 1st Deft.)
3. Annammai the widow of Ranga Padayachi was in possession of the plaint A schedule properties during her lifetime. She died in 1930. In 1916, when her husband's nephews Sadasiva and Adimoola were reversioners to the widow Annam-mai's estate a partition of the A schedule properties was effected between these two men, and ever since the suit properties continued to be enjoyed by Sadasiva till his death and after his death by his widow Annammai who is the second defendant and by his son Samiappa's widow Kasi Ammal who is the first defendant. It appears from the judgments of the Courts below that, although Annammai, the widow of Ranga Padayachi, was not a consenting party to the partition yet she had in effect abandoned these properties, having left the village where, the properties are situated and taken up her residence in another village. She did not care what happened to these properties, and what can be gathered from the judgments of the Courts below is that she did not object to her husband's nephews Sadasiva and Adimoola taking possession of these properties and dividing them during her lifetime.
4. Sadasiva died as already stated during the lifetime of the widow Annammai. But the share that was allotted to Sadasiva at the partition devolved on his son Samiappa. Samiappa also died and his share went to his mother Annammamai (Sadasiva's widow) and his own widow Kasiammal the first defendant. Adimoola continued to enjoy the share which fell to him at the partition. When Ranga Padayachi's widow Annammai died in 1930 Adimoola conceived the idea of claiming the entire properties in his capacity as the nearest reversioner and he filed O.S. No. 96 of 1939 from which this second appeal arises. For the purpose of this second appeal, reference need be made only to three out of the four items of properties mentioned in Schedule A to the plaint, the second appeal being restricted to these three items. The view taken by the learned District Munsiff and by the lower appellate Court is that the case comes within the scope of the decision reported in Somi Naidu v. Sitaramayya (1925) 22 L.W. 716. There was an attempt made on behalf of the appellant to show that the partition could not be recognised because on its date Sadasiva and Adimoola were only entitled to a spes successionis, that is to say, a bare right to succeed on the death of Ranga Padayaci's widow. But both the Courts find that it was not a bare right that was partitioned. They had actual possession of the three items of properties involved in this appeal and they did effectively divide those properties and enjoy them ever since the partition in 1916 without any protest by any party. In the circumstances, both the Courts below have held that it is not open to Adimoola to go back upon that partition arrangement since he is estopped from doing so. That was the view taken by Phillips, J., in the case reported in Somi Naidu v. Sitaramayya (1925) 22 L.W. 716. The plaintiff-appellant's learned advocate argues that the case in Somi Naidu v. Sitaramayya (1925) 22 L.W. 716 can be distinguished from the present case because there was a finding that the widow. concerned had consented to the partition. On a perusal of the judgment it does not appear that there was positive evidence of any such consent. The learned Judge has stated that the widow appears to have given her consent. Perhaps it was inferred from the fact that at the subsequent partition she was accepting certain benefits from one of the parties who had been party to the division of the properties. In the present case, as already stated there was no positive evidence that the widow consented to it. But her conduct can give rise only to one presumption and that is that she had no objection to the partition and that she had from her point of view abandoned the properties. In considering the question of estoppel it is the conduct of the parties to the partition that is material, and in the present case they did act on the assumption that the reversion had opened and that they had the right of dividing the properties although the partition took place during the lifetime of the widow. Having behaved in that fashion and having divided the properties they continued to enjoy the shares allotted to them from 1916 until the date of the suit from which this second appeal arises. Adimoola is certainly estopped from disputing the partition and in dealing with the question of such estoppel it seems to me it is not necessary to insist upon positive evidence that the widow had consented to the partition. In these circumstances, the view taken by the lower appellate Court is perfectly correct, and there is no ground for interference.
5. This second appeal is accordingly dismissed with costs.