1. This is an appeal by the plaintiff in a suit for recovery of possession of land upon establishment of title. The disputed property belonged to one Prannath Chakraverty who left three sons Bisseswar, Panchanon and Baroda. Baroda died childless with the result that the one-third share which he had taken by right of inheritance became vested in his two brothers. Thereafter Panchanon died, leaving a widow who is the plaintiff in this litigation. The surviving brother Bisseswar subsequently died, after he had made a testamentary disposition of his properties. An application was made by the defendant for probate of his will. The application was opposed by the plaintiff. On the 24th August, 1912, the parties to the probate proceedings came to terms and a week later the probate was granted, inasmuch as the lady withdrew her opposition. On the 7th June, 1918, the lady instituted the present suit to recover possession of the one-half share of the property which belonged to her husband. Prima facie, there is no answer to the claim. The husband of the plaintiff was unquestionably entitled to one-half share which upon his death was taken by his widow by right of inheritance. The defendant, who claims under the will of Bisseswar resists the action on the ground that, by reason of events which had happened in the probate proceedings, the lady was not competent to maintain her claim. The Subordinate Judge overruled this contention and decreed the suit. Upon appeal, the District Judge has taken a different view and has dismissed the suit. We are of opinion, that the view taken by the District Judge cannot be supported.
2. The appellant has urged that as the property in dispute exceeds Rs. 100 in value, the undoubted title of the plaintiff could have been transferred by her only in accordance with the provisions of the Transfer of Property Act, namely by means of a registered conveyance. In support of this view reference has been made to the decision of the Judicial Committee in Maung Shew Goa v. Mating Inn A.I.R. 1916 P.C. 139, which was applied in Gangaram Rama v. Sakkaram : (1920)22BOMLR1396 . As there is no registered conveyance in this case, the title, prima facie, continues in the plaintiff.
3. There is no further allegation that the plaintiff agreed, at any time, to convey to the defendant her interest in the estate of her husband. No question can thus raise as to possible right of the defendant to claim specific performance of an agreement to sell. There is, consequently, no room for the application of the doctrine of Walsh v. Lonsdale  21 Ch. D. 9, as explained in Hari Pada Ghose v. Miod Krisna Ghose A.I.R. 1921 Cal. 383, and Aminullah Chaudhury v. Mahabbat Ali A.I.R. 1921 Cal. 519 That principle is that when in pursuance of an agreement to transfer property, the intended transferee has taken possession, though the requisite legal documents have not been executed and registered, the position is the same as if the documents had been executed, provided that specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined.
4. As a last resort, the defendant has invoked the aid of the doctrine of estoppel. Our attention has been drawn to the petition of compromise filed in the probate proceedings on the 28th August, 1912. The terms of that petition are as follows:
1. Having come to know that the will is a genuine one, the opposite party has given up the objection she previously filed against the will.
2. This opposite party or her husband had no interest in respect of the property described in the will, and, in future, she will not be entitled to lay any claim thereto if she prefers any such claim, it will not be accepted; (3) the opposite party will be entitled to occupy half the homestead described in the will during her life-time, but she will not be entitled to make a gift of it or to sell it or to transfer or otherwise. Neither the petitioner nor his heirs or representatives shall be entitled to exercise any acts of possession during the lifetime of the opposite party but after the death of the opposite party that property will revert to the possession of the petitioner. The heirs or representatives of the opposite party shall not be entitled to raise any objection to such a course, (4) no costs remain due by any of the parties to the other.
5. We have been informed that the decree was made in probate proceedings in accordance with these terms ; but that decree could not possibly decide any question of title to the property covered by the will. It was ruled by this Court in the case of Behari Lal v. Juggo Mohan  4 Cal. 1 which was followed in Madhusudhan v. Jagadindra  20 C.L.J. 307 that a probate Court has no jurisdiction to deal with title to property covered by a testamentary instrument. Sir Richard Garth, C.J., stated that upon a bona fide application for probate of a will it is not the province of the Court to which the application is made to go into questions of title with reference to the property which the will purports to dispose. The position consequently, is that at the worst the plaintiff abandoned her claim to the estate of her husband. But that abandonment, whether orally stated or recited in the petition, could not destroy her title, and we have not been able to discover how the principle of estoppel can assist the respondent. We are of opinion that the defendant has no answer to the suit and the Subordinate Judge rightly decreed the claim.
6. The result is that the decree of the District Judge is set aside and that of the Subordinate Judge restored with costs in all the Courts.