Murray Coutts Trotter, Kt., C.J.
1. The facts necessary for the determination of this reference are briefly these:
Vemulapalli Subbayya died in 1909, leaving a widow Seethamma, the 1st defendant and his mother Bapamma, the 3rd defendant surviving him. On the 2nd of October, 1918, Seethamma executed a deed of gift in respect of some of the properties that came to her from her husband in favour of her own brother Veeraraghavayya who is impleaded as the 2nd defendant in this case. The gift was effected by means of a document which is filed as Exhibit I in the case, and on the 19th of October the plaintiff executed a document filed as Exhibit II which in effect is a complete relinquishment of all of his rights as prospective reversioner and also purports to give full consent to the transaction evidenced by Exhibit I, to which document indeed he was an attesting witness. The question is whether by reason of his action in these matters he is to be held to be precluded from challenging the transaction. The exact wording of the question is as follows:Where an alienation without necessity (Exhibit I) by a Hindu widow of property forming part of her deceased husband's estate is consented to by the next presumptive male reversioner who, however, receives no consideration for giving such consent, is the transaction binding on the consenting reversioner, if he succeeds to the estate after the death of the widow' and of the female reversioner succeeding her?
2. There is a Full Bench decision of the Allahabad Court, Fateh Singh v. Thakur Rukmini Ramanji Maharaj I.L.R. (1923)A. 339, which is directly in favour of the respondent here, and that in its turn was followed by a Full Bench of the Bombay Court, Akkawa v. Sayadkhan Mithekhan I.L.R. (1927) B. 475. In substance the argument before us is that these cases are inconsistent with the Privy Council decision in the Goundan's case, Rangasami Goundan v. Nachiappa Goundan .
3. The learned Judge who decided the Second Appeal, Ramesam, T., speaks in his judgment of the plaintiff, the prospective reversioner being estopped. In our opinion no question of estoppel arises in this case at all, for the essence of the doctrine of estoppel is that a person who acts on a representation of fact made to him by another person and is thereby damnified, is entitled to say that the person who made that representation cannot be heard to contest the truth of the facts which he himself asserted. The essence of the doctrine is that the person who acted on the faith of the assertion was damnified by so acting, and that feature is altogether absent in this case.
4. The next ground on which it is suggested that the plaintiff may be put out of Court is on the doctrine of election. That well-known equitable doctrine is stated in the leading case of Streatfield v. Streatfield decided in 1735 and most conveniently reported in 1 White & Tudor, 440, and I cannot summarize it better than in the words of the learned editors in their notes to that case which begin at the bottom of page 444. They say this:
Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both.
5. The same principle is often put in another form that a person cannot approbate and reprobate the same transaction. In this case that doctrine can have no application for the simple reason that no benefit was taken by this plaintiff of any kind, and that his approbation was a mere expression of intention which had no further consequences. But there is a third doctrine of equity, an obviously indispensable one which has received various legal labels, sometimes being spoken of as election and sometimes as ratification. Its most authoritative exposition for an Indian Court is to be found in the judgment of the Board in the Goundans' case , delivered by Lord Dunedin and I' think it best to set out the material passage in full.
No doubt there is another view which is not estoppel, but is expressed by one learned Judge as ratification. It is scarcely that, though it might be hypercriticism to object to the use of the word. What it is based on is this. An alienation by a widow is not a void contract, it is only voidable--Bijoy Copal Mukerji v. Krishna Mahishi Debi Now in all cases of voidable contracts there is a general equitable doctrine common to all systems that he who has the right to complain must do so when the right of action is properly open to him and he knows the facts. If, therefore, a reversioner, after he became in titulo to reduce the estate to possession and knew of the alienation, did something which showed that he treated the alienation as good he would lose his right of complaint. This may be spoken of, though scarcely accurately, as ratification. In some cases it has been expressed as an election to hold the deed good--Modhu Sudan Singh v. Rooka (1897) L.R. 22 IndAp 164 : I.L.R. 25 C. 1 : 7 M.L.J. 127.
But it is well settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alienation at its inception, he need not do so, but is entitled to wait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption. The present plaintiff raised these proceedings immediately after his title was confirmed.
Of course something might be done even before that time which amounted to an actual election to hold the deed good.
16. His Lordship points out that an alienation of this nature by a widow is not a void but only a voidable contract, and that it can be affirmed expressly or impliedly by conduct of those whose interest it is to have it avoided. It has been argued that their Lordships meant to confine the class of persons who could validate the voidable contract to a reversioner who had not merely a spes snecessionis but had become in titulo to reduce the estate into possession. Giving the best consideration we can to this leading authority, we think that that passage is by way of illustration and should not be treated as exhaustive of the possibilities of a reversioner validating a prima facie voidable contract. There are two cases in which a reversioner may lose his rights. The first is when he does something definite and positive to indicate his election to abide by it; the other is where he is merely guilty of laches and sleeps on his rights. It is clear that what their Lordships call a presumptive reversioner like the present plaintiff cannot be deemed to have affirmed the widow's alienation by mere inactivity. He is entitled to bring a declaratory suit but he is not bound to do so; he may wait until the succession opens by the death of the widow and the termination of any other intervening interest. The question is whether the same holds good in the case not merely of passivity but of a positively manifested intention to abide by the act of the widow. That seems to be left open by the concluding words of the passage that I have quoted in which it is said that something may be done even before that time (that is, when the succession opens) which amounted to an actual election to hold the deed good. Their Lordships do not specify what class of cases they had in contemplation. One would obviously be where the presumptive reversioner had brought himself either within the doctrine of estoppel, or had taken a benefit and thereby fallen within the doctrine of election strictly so called as defined in Streatfield v. Streatfield. The Allahabad and Bombay High Courts held that a third case exists, namely, where although no one has been damnified so as to call into operation the doctrine of estoppel and the reversioner has taken no pecuniary benefit to bring himself within the meaning of the strict doctrine of election he has nevertheless positively and definitively chosen to announce his intention and in fact agreed to abide by the act of the widow. The Full Benches of Allahabad and Bombay have decided that he can do so even while he only occupies the character of a presumptive reversioner. We agree with the Allahabad and Bombay Courts in thinking that if he takes such a step he is personally debarred from resiling from it afterwards. Indeed it is so obviously desirable that the Courts of India should speak with one voice on a matter of such constant recurrence as this that we should not dissent from those decisions unless we were convinced that they were contrary to the decision of the Privy Council in the Gaundans' case . For the reasons stated we do not think that they are.
Madhavan Nair, J.
17. I agree.
18. I agree.