1. The suit which gave rise to this appeal was brought by the plaintiff for recovery of khas possession of the land of the site of a hut described in the schedule to the plaint after establishment of the plaintiff's raiyati title to it. The plaintiff's case is that the property in suit is included within a holding which belonged to Tarini Charan the father of the respondent. He died leaving a widow Raj Kumari and a son the present respondent. The mother and the son jointly executed a deed of sale in- favour of the plaintiff on the 21st Baisakh 1324, and it was agreed thereunder that the hut would be removed by the defendants within 15 days. They having failed to do so the plaintiff instituted the' present suit against both Raj Kumari and Rajendra the respondent. After the institution of the suit Raj Kumari died and Raj Kumar was the sole defendant on the record as the heir and successor of his father. The First Court gave a decree to the plaintiff holding that the respondent is estopped by the transaction as shown by the kobala of the 21st Baisakh 1324, from denying the plaintiff's title. On appeal the learned District Judge has taken a different view and has held that under Section 6 of the Transfer of Property Act the reversionary interest of the respondent who was then a mere reversioner could not be transferred and so the plaintiff purchased nothing more than the eight-annas share which had accrued to the respondent on his father's death and that his claim in respect of the widow's limited interest in the remaining eight-annas share ought to fail. I should mention that Tarini left a widow Raj Kumari and two sons one of the sons died in the lifetime of the mother who inherited his share in the property left by Tarini and had a Hindu widow's estate in it.
2. The sole question, therefore, which arises and which has been ably argued on both sides before us is whether the respondent is estopped from challenging the sale to which he was a party. The learned Advocate for the appellant contends that the respondent is estopped from denying the validity of the sale and has relied upon a decision of the Allahabad High Court in the case of Mahdeo Prosad Singh v. Mata Prasad 63 Ind. Cas. 721 : 44 A. 44 : 19 A.L.J. 799 : 3 U.P.L.R. (A.) 134 : (1922) A.I.R. (A.) 297. In that case in a very considered judgment the learned Judge on facts similar to the present case held that the reversioner was affected by the doctrine of estoppel and was not entitled to challenge the validity of the deed to which he was a party. There the widow and the reversioner jointly executed a deed of gift in favour of the defendant. It was held that the plaintiff was estopped from challenging the transaction. Apparently a contrary view has been taken in the case of Bai Parvati v. Dayabhai Manchharam 58 Ind. Cas. 266 : 44 B. 488 : 22 Bom.L.R. 704. In that case the widow and one of the reversioners jointly executed a deed of gift. It was held by the learned Judges that the deed was good only as regards the life-estate of the widow and was bad as regards the reversioner's chance of succession under Section 6, Transfer of Property Act. There being a conflict between these two cases it is necessary to examine them carefully. In the Allahabad case almost all the cases bearing on this point were considered and on a consideration of those cases the learned Judges came to the conclusion that the weight of authority was entirely in support of the view that where the widow and the next reversioner joined in conveying a property by which they transferred the absolute interest in it the reversioner cannot after he comes into possession challenge the transaction under the rule of estoppel. The learned Judges considered the case of Bai Parvati and attempted to distinguish it though I do not personally think that there is any real distinction in principle between these two cases. The learned Judges of the Allahabad High Court expressed themselves with reference to the Bombay case that 'if it was intended to lay down the general proposition that in no case a reversioner can by his act or conduct estop himself from challenging a transfer after he had succeeded to the estate, then we would not agree with the decision.' As at present advised, I am inclined to follow the Allahabad decision in preference to the Bombay case. In the Bombay case the learned Judges proceeded simply upon Section 6, Transfer of Property Act, on the rule of non-transferability of spes successionis. They have not considered the question of estoppel. It was case of gift and the question of change of position of the donee by the act or conduct of the donor would rot have arisen. The present case is not a case of this description. It is a case of sale for consideration. I am not, therefore, called upon in this case to express any opinion as to whether in a case of gift the law of estoppel applies as in the case of transfer for consideration. In the Allahabad case, too, though there was a gift the learned Judges in the course of judgment observe that there was a lease previous to the gift for which a sum of Rs. 2,000 was paid as salami and, therefore, it could not be said that the gift was wholly without consideration.
3. It has been argued before us by 'the respondent that there is a distinction between a reversioner giving consent to a transfer by a widow and a reversioner joining a widow in the transfer. It is said that in' one case the widow transfers the absolute, interest and the reversioner sanctions ' it by giving his assent. In the other case the transfer-is nothing more than of her life-interest and the ' reversioner joins in the conveyance in transferring the reversionary interest which under the law he is not competent to do. To my mind there does not seem to be much distinction; at any rate that distinction cannot be applied to the facts of this case. In either case it cannot be said that the widow has any absolute interest and the purchaser cannot purchase the absolute interest from the widow but with the consent of the reversioner. There is not much difference for practical purposes between a consent given by word of mouth or conduct or by attestation of the document and by joining in the conveyance with the widow which is sufficient evidence of his consent.
4. This brings us to the next contention of the learned Vakil for the respondent viz., that the consent of the reversioner to a transaction by the widow clothes it with' validity only in a case where the transfer is made ostensibly for legal necessity; in other words, if the widow transfers the property in which she has a life estate for legal necessity and the reversioner assents to the transfer his conduct presumes that there was legal necessity; and in support of this contention numerous cases have been cited; but it is not necessary to deal with this point as it has been settled beyond controversy: Rangasami Gounden v. Nachiapa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 20 C.L.J. 539 : 21 Bom.L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 232 : 26 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R. (P.C.) 66 (P.C.). The cases which have laid down that view including the Full Bench case of Debi Prasad Chowdhry v. Golap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499 have proceeded on a rule of evidence holding that the conduct of the reversioner in assenting to the transfer affords sufficient evidence of the existence' of legal necessity unless it is rebutted by more cogent proof. In these cases, therefore, the question of estoppel did not arise and' was not considered. It may also be remarked in this connection that in the cases which have been* placed before us the transaction to which the reversioner assented has been challenged by someone, other than the assenting reversioner, who succeeded to the property on the death of the widow.
5. The third point raised by the learned Vakil for the respondent is that there can be no estoppel on a point of law and that by operation of the rule one cannot be held to be bound by a transaction which under the law he is not competent to enter into. Before dealing with this question it is necessary to consider the tenor of the kobala executed by the respondent and his mother in favour of the plaintiff. It recites how the right accrued to the vendors. They stated that on the death of Tarini Charan (father) and Gobinda Kumar (son), Raj Kumari for her life and Rajendra as his heir and reversionary heir became the malik in possession of the maliki share in the properties mentioned in the schedule. It is further stated, 'Accordingly we do execute this out and out deed of sale in respect of our interest in the raiyati jama.... In lieu of the said sum of money (Rs. 2,000) we sell to you by means of this kobala the immoveable properties mentioned in the schedule below free from incumbrances owned and held by us...what right, title and interest we had in the same do accrue to you from today...we and our other heirs have or will have no right, title or interest or claim in connection with the same.' Reading the document as a whole it is not-disputed, and it appears to be, that what the parties intended to dispose of was the interest of Tarini in the raiyati which was then in the possession of the widow in life-estate to the extent of eight-annas and to which the son has had a reversionary title. The plaintiff purchased the entire interest in the property by payment of proper consideration for it and the executants sold the entire interest held at that time by these two persons. From this transaction it is clear that one party in-tended to purchase and the, other to part with the absolute ownership of the property. In my opinion it does not lie in the mouth of Raj Kumar now to turn round and say 'though I intended to sell to you whatever interest I had in the property and received proper consideration for it, the sale so far as my interest was concerned was bad in law and I am entitled to regain possession of it'. That is a position which is not defensible in law or in equity and the rule of estoppel is clearly applicable to such a case. It should be noted that the deed recites that the property was sold to pay off certain debts of and decrees against the respondent.
6. The question with regard to the effect of the assent of the reversioner to a transfer' by a widow not for legal necessity came up for consideration in this Court in the case of Raj Bullubh Sen v. Oomesh Chancier Rooz 5 C. 44 : 4 Ind. Jur. 455 : 3 C.L.R. 384 : 2 Shome L.R. 184 : 2 Ind. Dec. (N.S.) 640. There a Hindu widow with the consent of the then reversioner transferred a property by a deed of gift. It was argued that the validity of an alienation by a widow depends upon legal necessity and the consent of the next heir is of value not as validating the alienation but as the strongest evidence of the necessity. The defendant in that case was the heir of the reversioner who had assented to the gift but died after the death of the widow. Jackson, J., observed as follows: 'I would hold the defendant to be concluded not on the ground that he is bound by the act or consent of his father...but upon this ground, that the act of the widow sanctioned by the concurrence of the then next heir and reversioner, was in itself a valid ground.'
7. In this connection reference may also be made to Section 43, Transfer of Property Act, the principle of which to my mind applies to this case. The respondent, no doubt, did not claim any right other than what he possessed' at that time, but what he purported to sell was the interest he has or would have in the property and which he was competent to sell after the right to the property had accrued to him, after the death of the mother. He cannot now turn round and assert that when he sold the property he had not the right to do so. The principle of estoppel as embodied in Section 43 Transfer of Property Act, was applied by this Court in a case which went up in appeal to the Privy Council, and the judgment of the Judicial Committee is reported as Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.) 1 : 12 Bur. L.T. 122 : 46 I.A. 1 (P.C.). Their Lordships reversed the decision of this Court not on the ground that Section 43, Transfer of Property Act, and Section 115 of the Evidence Act did not apply to the facts similar in principle to those of the present case but on the ground that in that case Section 43 Transfer of Property; Act, and Section 115 of the Evidence Act did not apply as they held on the evidence that it was not proved that the vendee was induced to alter his position in consequence of the representation contained in the deed of conveyance by the reversioner. I accordingly hold that the respondent is estopped from denying the plaintiff's title to the land in suit and in this view I will allow the appeal.
8. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs in all the Courts.
9. I agree.