Chandrasekhara Aiyar, J.
1. The first defendant appeals from a decree granted to the plaintiffs for recovery of possession of the suit properties with mesne profits. The plaintiffs' suit was dismissed by the Subordinate Judge, but was decreed on appeal by the District Judge of Madura. Originally, the plaintiffs sued for a declaration that they and the 12th defendant were trustees of the suit properties and were entitled to recover possession from defendants 1 to 3. The claim was opposed on the basis of a will executed by one Irulayi, widow of one Sudalaimuthu Pillai under which she set apart the properties for the performance of charities and nominated certain trustees. The will provides for the filling up of vacancies in the trusteeship, and if the trustees so appointed by her or coming in their place by co-option refuse to act or do not act properly, fresh trustees were to be appointed by all the married adult male members of her community, namely, that of Arumugamangalam Vellalars living in the Madura District. The plaintiffs stated that the trustees did not act properly, that the male members of the community met together and elected them, and that they were therefore entitled to sue for the recovery of possession of properties from defendants 1 to 3, who had no right whatever. The defendants contended that the plaintiffs were not duly elected trustees, that all the trustees who were previously functioning did not refuse to act and that there was nothing to show that they acted improperly. Another point raised by them was that Irulayi had only a life interest in the properties and had no right to dispose of any of them by will. Both these contentions found favour with the learned Subordinate Judge. On appeal, however, the defect in the title set up by the plaintiffs as trustees were sought to be got over, by an amendment petition in which the plaintiffs asked that they should be allowed to sue as the representatives of the community in question. The amendment though opposed was allowed and it is in this capacity as representatives of the community of Arumugamangalam Vellalars that they and the 12th defendant together got a decree at the hands of the District Judge. On the second point, the learned District Judge held that Irulayi got an absolute title to the properties in dispute under the award of the mediators who were called upon to settle the disputes that had arisen between her on the one hand and her husband's brother Gopala Pillai and his sons and others.
2. The reference to the arbitrators is evidenced by Ex. P-1 dated 21st September, 1906, and the award is Ex. P-2 dated 10th January, 1907. It is not disputed that under the reference the parties wanted the properties allotted to each share to be allotted absolutely and that the award does so in fact.
3. Mr. V. Ramaswami Ayyar, the learned advocate for the 1st defendant has disputed the correctness of the conclusion reached by the learned District Judge on both the points. He contended that the provisions of Order 1, Rule 8 were to be applied only in the stage of a suit and could not be taken advantage of during the hearing of an appeal from a decree in the suit for the purpose of overcoming an obstacle in the way of the plaintiffs' title. In my opinion this contention has no force. An amendment can be made at any stage so long as it does not alter the nature or the character of the suit or the cause of action and there is nothing which prevents a Court, so far as I am able to see, from permitting persons suing in their individual capacity to sue as representatives of a larger group, even during the stage of appeal. When the appellate Court finds that an amendment of this kind which does not materially change the substance of the suit is necessary in the interests of justice, it should be allowed to overcome a technical difficulty in the way of the plaintiffs. There is no authority holding that Order 1, Rule 8 applies only to suits and not to appeals.
4. There is no substance in the point that the plaintiffs should get the trustees removed first. Under the will they have the right to take possession of the properties in the event of mismanagement and if the trustees are not in possession having allowed third parties like defendants 1 to 3 to get into possession they can ask to be put in possession; the removal of the trustees who have already got out of the way is not a condition precedent.
5. On the question of Irulayi's title, the argument addressed was that as she put forward before the arbitrators a claim only as the widow of Sudalaimuthu, she could not get under the award an absolute title and that the reversioners could not confer on her any such title even if they wanted. It was also urged that there was nothing like estoppel in the case of a transfer of a spes successionis. The muchilika Ex. P-1 refers to the existence of prior disputes between Irulayi and Gopala Pillai and his sons. It was to settle these disputes that the intervention of the arbitrators was sought. What those disputes were is not apparent from any oral evidence in the case but can be gathered from certain previous proceedings which took place between the parties. Gopala Pillai, one of the sons of the 1st defendant filed O.S. No. 85 of 1926 impeaching this very arrangement under the award.
6. Iruiayi filed a written statement Ex. P-8 in answer to this action and in this she stated that the dispute that she had raised was that she was entitled under the oral directions of her husband to an absolute title to the estate left by her husband. Her statement is good evidence of the right claimed by her, though it is certainly not proof of the validity or legality of that right. In 1936 the present 1st defendant himself filed a suit for setting aside the award arrangement impeaching that it was not binding against him. In this suit he tells us what were the claims that were put forward by the parties on Sudalaimuthu's death. Gopala Pillai was claiming the properties as joint family properties which he and his sons got by survivorship, while Irulayi stated that they were the self-acquisitions of her husband Sudalaimuthu. These then were the disputes that went before the arbitrators, Gopala Pillai and his branch alleging that the properties were joint family properties which passed to them on Sudalaimuthu's death by survivorship, and Iruiayi pleading that they were the self-acquired properties of her husband, which she got under his oral directions and that in any event, they were not joint family properties. It was in this state of affairs that the parties met together and agreed that whatever properties: were allotted to each of the disputants should be allotted absolutely to them. The mediators divided the properties between them on this basis. It is not suggested that the mediation and the award were a device or a contrivance adopted by the widow and the reversioners to divide the estate between themselves to the prejudice of the ultimate reversioners. It was a case where each party was asserting some title to the property in negation, partial or wholesale, of the title set up by the other side. There is no reason why in these circumstances the award should not be regarded as a bona fide compromise of disputes that had arisen between the parties as binding on both sides. According to the plaintiffs in this suit, the claim set up by Gopala Pillai and his branch that the properties were joint family properties and passed to them by survivorship was a false one; but there is nothing which prevented the arbitrators from proceeding on the basis that the claim was a true one and that Gopala Pillai and his sons were persons fully entitled to the properties who of their own accord and free-will could give a half share in them absolutely to the widow. All that is required in the decisions cited for the appellant is that the persons who enter into a compromise with the widow must be persons who could convey a title to her. Gopala Pillai claimed that he got the properties by survivorship and the arbitrators possibly recognised this claim and gave the widow a half share as Gopala Pillai and his sons Wanted them to do. It is one thing for the ultimate reversioners to come forward and impeach a transaction as not binding on them, as it was a mere cloak or contrivance to cheat them of their reversionary rights, brought about by collusion and fraud between the widow on the one hand and the presumptive reversioners on the other. But it is another thing for the very reversioners who are the parties to the transaction and who happen to be the actual reversioners on the death of the widow to urge that it does not bind them. Of course, if it Is a mere spes successionis there can be no estoppel, but if there was some antecedent title which was set up, it might prove good or bad ultimately and it was on the basis of this antecedent title that the compromise was effected, then the transaction ceases to be a transfer of mere spes successionis and the doctrine of estoppel comes into play.
7. This case is in my view governed by the Privy Council's decisions in Kanhai Lal v. Brij Lal (1918) 35 M.L.J. 459 : L.R. 45 IndAp 118 : I.L.R.40 All. 487 (P.C.) and Nathu Lal v. Babu Ram (1935) 40 C.W.N. 481 : L.R. 63 IndAp 155.(P.C.). The decision of the lower appellate Court is confirmed and the second appeal is dismissed with costs.
8. No leave.