1. This appeal is against the decree of the learned Chief Justice in S. A. No. 196 of 1925. The suit was one for partition and mesne profits. The findings of fact are that the property originally belonged to defendant 1's father and on his death his widow succeeded. She demised it under Ex. I to defendant 1 and her husband. The widow is said to have died in 1911. Subsequently to this, defendant 1's husband married a second wife, the plaintiff. He died in 1917. The co-widows, defendant 1 and the plaintiff, lived together till 1921, when defendant 1 turned the plaintiff out of the enjoyment of the suit property claiming the whole as the reversioner to her father. The trial Court and the lower appellate Court both held that defendant 1 had acquiesced in the position that her husband was a co-owner of the property and therefore was now estopped from interfering with the passing of his share to the plaintiff. On the ground that this concurrent finding of fact concluded the case, the learned Chief Justice held that there was in second appeal no question of law and ho dismissed the second appeal. Defendant 1 put in the present appeal.
2. Now, prima facie, the legal position of defendant 1's husband on the facts stated above is that he succeeded to the half-share of the widow's limited estate during her lifetime and that his ownership therefore came to an end on the death of the widow, on which event the reversioner to defendant 1's father would step into the inheritance. Less than 12 years have elapsed before the suit since the death of the widow and defendant 1 is undoubtedly the nearest reversioner. It would seem to follow that defendant 1's title to her father's property is incontrovertible, and, since she has not been defeated by adverse possession, she is entitled to possession, and to defeat the plaintiff's claim.
3. The plaintiff, however, founds her case on the contentions that the settlement deed, Ex.. I, conferred on her husband an absolute estate, and that since its date,. 1889, her husband was, up to his death,, enjoying his share absolutely. But clearly the donor under Ex. I, could not confer more than she possessed, and even if she-purported to confer an absolute estate she-could not do so as she herself was merely holding a widow's estate in the property. The plaintiff therefore cannot rely or Ex. I as giving her husband an absolute estate.
4. An argument, however, was advanced for her that her husband came into the family as the illatom son-in-law during the lifetime of defendant 1's father and that by a family arrangement, apparently in the lifetime of defendant 1's father, he-was given a half-share in the property, of which arrangement Ex. I was merely a later and formal recognition. Now such a case was never in the plaint or in the issues or in the evidence given on the plaintiff's side, nor do we find it in the evidence on the defendant's side. The trial Court accepts this contention on its-own construction of certain phrases in the evidence of defendant 1 herself: She, however, does not use the word 'illatom' but merely (Ponnukkay Alaivanda, having, come as a man for a woman). The custom of illatom we are acquainted with as it is in vogue in the Telugu East Coast districts, but that it is in vogue also among the Tamils in the Trichinopoly District, there is no evidence; nor is there any evidence that the Tamil phrase-used by defendant 1 imports the legal position which, by well-known custom-the Telugu word 'illatom' imports. Such a contention was eminently one that had to be stated and proved as an issue of fact, and as noted it was never hinted at until defendant 1 was in the witness-box. There is no mention of it in Ex. 1 itself, as surely there would have been had the contention been true, no hint there that the plaintiff's husband was at all in the position of an illatom son-in-law. It appears to us that there is no evidence on which the Courts of fact could conclude that the plaintiff's husband was an illatom son-in-law in the legal acceptation of that expression, and they therefore appear to have committed an error of law in holding that he was.
5. As to the suggestion of the family arrangement, again it was never raised in the pleadings or in the issues. There is, absolutely no evidence that any such arrangement took place. Again it is not suggested in Ex. I. Further in 1889 defendant 1 was a minor and there is no suggestion as to whether any one, and if so who, acted as guardian for her in such an arrangement. Such a plea cannot be accepted at this late stage.
6. It is finally argued for the plaintiff that defendant 1 is estopped by her own conduct from resisting the plaintiff's claim because (1) she accepted the gift of a half-share under Ex. I which purports to be absolute, and therefore cannot contend that her husband's half-share is anything less than absolute; (2) she treated the property as the property of her husband in that she and the plaintiff jointly sold a part of it under Ex. B in 1918, and (3) that she and the plaintiff paid kist jointly for the property in 1919 and 1920 in the name of their husband. To this there was added a contention that even during the husband's lifetime she allowed him to treat the property as his own. This plea again was never set up in the pleadings or in the issues. Estoppel is eminently a matter of pleading and here there is none. It is difficult to see bow there can be any estoppel. Even if, for the sake of argument, it is admitted 'that defendant 1 might have estopped herself during the widow's lifetime from asserting against her husband her own rights under Ex. I to her share of the widow's estate that estoppel ceased with the ceasing of the widow's estate. From that date, defendant 1 claims not as donee sunder Ex. I but as reversioner to her father. The idea that the language of Ex. I and her acceptance of the share under Ex. I prevents her from asserting that it is not an absolute estate which was conferred on her husband cannot be accepted. The estoppel cannot avail to give her husband rights higher than his donor had Defendant 1 no doubt elected to accept such rights as Ex. I conferred on her, but only for such period as these rights enured, and now that these no longer enure, she takes her stand, as she is entitled, upon her reversionary rights: see Alamelu Ammal v. Balu Ammal [l914] 43 Mad. 849. The plaintiff is unable to explain to us how her husband obtained the reversion which his donor never had to give away. We are unable to see how she can now deprive defendant 1 of that, and that is, what her claim amounts to. Nor can she inform us what act of hers or of her husband was induced by any belief engendered by some act or omission by defendant 1 which would form the estoppel. Further mere acquiescence by defendant 1 in her husband's enjoyment after the death of the widow will not give the plaintiff a title unless that enjoyment was adverse to defendant 1 for over 12 years. There is here no question of the rights of an innocent bona fide transferee without notice.
7. We are of opinion that the suit has been wrongly decided by the learned Chief Justice and that the concurrent finding of fact that the appellant has acquiesced for less than 12 years since the death of the widow in the position that her deceased husband was co-owner of the property is not sufficient to deprive her of her reversionary right or sufficient to constitute any ground of estoppel which would dispose of the case. We must therefore reverse the judgment under appeal and dismiss the plaintiff's suit with costs in all Courts.