1. The suit out of which this appeal arises is a suit between two purchasers. The plaintiffs represent the purchaser from the heir of the property in dispute, and the defendants the purchaser from the sons of a legatee of this property. The original owner was the husband of one Bhubaneswari Debi. After his death and that of her son, Surjya Kumar, she succeeded to a woman's estate in the property. By a Will which she executed, she recited the her son Kali Kumar was a person of dissolute habits and that it was not desirable that her property should go to him. She accordingly left it to her daughter, Surat Kumari, with a proviso that if male children should be born to Kali Kumar, then on their attaining 25 years the said son or sons should succeed to the whole estate. This Will is admittedly invalid, because the testatrix had no interest of which she could dispose by Will, and it further contains an ineffectual bequest to unborn grandsons. Under it her daughter Surat Kumari entered into possession and continued in possession until her death. During her lifetime Kali Kumar, and after his birth, his son Santosh lived jointly with her, and the provision of the Will regarding the payment of an allowance to the son was fulfilled.
2. The Trial Judge held that the Will was a collusive one, and that it was also in the nature of a trust. He, therefore, held that the possession of Surat Kumari was never adverse to Kali Kumar and his son, and that, therefore, the suit was not barred by limitation. He accordingly decreed the plaintiff's suit. The first Appellate Court, on the other hand, held that the Will was not a collusive or colourable document, and that, therefore, the possession of Surat Kumari was adverse to Kali Kumar and his son. He also held that Kali Kumar and his heirs were estopped by conduct from disputing the title of Surat Kumari. He has accordingly dismissed the plaintiffs' suit.
3. On second appeal three grounds are argued: first, that the possession of Surat Kumari was not adverse to Kali Kumar; secondly, that Surat Kumari and her successors are estopped from disputing the claim of Kali Kumar's son; and thirdly, that the finding of the lower Appellate Court as regards estoppel against Kali Kumar and his successors is mistaken. On each of these points the appellants are entitled to succeed.
4. Taking first the question of adverse possession, the finding of the learned Additional Judge that the Will was not a collusive or colourable transaction is not itself sufficient to support a case of adverse possession; and when the admitted facts are examined, it is clear that the possession of Surat Kumari was not, in fact, adverse to Kali Kumar and Santosh. Neither she nor Kali Kumar appears to have had any idea that the Will was not a valid one. She never set up any other title except the Will, On the contrary she accepted all its provisions, and regularly made the payments required to be made to the family of Kali Kumar. These payments took up practically all the income of the property. She lived with Kali Kumar jointly and in amity up to the time of her death, which occurred some fourteen years after the birth of his son. It is clear that both she and Kali Kumar accepted the position conferred on them by the Will, and that her possession was not adverse to him and his son.
5. Next as regards estoppel against Surat Kumari and her successor. On this point the case is on all fours with Board v. Board (1874) 9 Q.B. 48 at pp. 53, 54 ; 43 L.J. Q.B. 4 ; 29 L.T. 459 ; 22 W.R. 206 and the principle laid down there and in Rup Chand Ghose v. Sarbessur Chandra Chunder 3 C.L.J. 629 at p. 634 ; 10 C.W.N. 747 ; 33 C. 915, viz., that a person who accents a position conferred upon him by a Will cannot at the same time repudiate so much of the Will as conveys an interest to another person, governs this case.
6. In this case Santosh Kumar was the remainderman under the Will, and Surat Kumari was, therefore, by her acceptance of the Will, precluded from disputing his title as remainderman. It is true that at the trial he claimed not as the remainderman under the Will, but as heir to the property. But that is a matter of pleading which does not affect the facts and their application. We hold accordingly that Surat Kumari and her successor-in-title are estopped from disputing the title of Santosh.
7. The learned Additional District Judge has held that Kali Kumar and his successors are estopped from disputing the defendant's title by the acquiescence of Kali Kumar in the possession of Surat Kumari under the Will. It is, no doubt, true, as the learned Additional District Judge points out, that Kali Kumar did support Surat Kamari's claim to obtain Probate of the Will and that he did not make any effort to assert his own rights against her. The circumstances, however, which have been already set forth make it clear that the acquiescence does not amount to an estopped. All that Kali Kumar can be said to have acquiesced in is the Will, and according to the provisions of the Will Santosh would be entitled to succeed. Santosh, therefore, and his successors-title cannot be held to be estopped by any such conduct on the part of Kali Kumar. There is no question of any representation having been made to defendants by Kali Kumar or Santosh on the strength of which the defendants made their purchase. The plaintiffs, therefore, are not concluded by any estoppel.
8. The result is that the appeal succeeds. The plaintiff's claim will be decreed with costs in all Courts.