Gulzar Singh and Others vs Bishan Singh (Deceased) through his Lrs. and Others

Hemant Gupta, J.—The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for possession consequent to the decree dated 04.03.1953 was allowed. The present appeal initially came up for hearing before this Court on 23.05.2007 and this Court framed the following substantial question of law and answered the same in favour of the defendant-appellants while allowing the appeal:

Whether the plaintiff Bishan Singh is estopped from filing the suit for possession having consented to the sale in favour of Waryam Singh on 13.03.1952?

However, the said judgment of this Court was set aside in Civil Appeal No. 2052 of 2012 titled "Laskhar Singh v. Gulzar Singh and others", on 13.02.2012 and the matter has been remitted back to this Court. The matter has been thus placed again before this court.

The said substantial question of law arises out of fact that Amar Singh, Bishan Singh and Gurdit Singh, the three brothers, were the joint owners of ancestral land. On 13.03.1952, Amar Singh, who was unmarried, executed the sale deed of land measuring 19 kanals 1 marla in favour of Waryam Singh. Banta Singh and Charan Singh sons of Gurdit Singh filed a suit for declaration challenging the said sale, inter alia, on the ground that such sale will not affect their reversionary rights, as the land sold is ancestral. In the said suit Bishan Singh, plaintiff in the present case, was the defendant and has not contested the suit. One of the issues i.e. Issue No. 7 in the said suit was; whether the collaterals of the vendor gave their consent to the alienation. On such issue, the learned trial Court returned a finding that all the collaterals did not give their consent to the sale and that the consent given by some of the collaterals is not binding on other collaterals. The Court found that defendant No. 5 Kishan Singh gave his consent to the sale and that the sons of Gurdit Singh are not debarred from contesting the alienation in favour of Waryam Singh. The relevant extract from the judgment dated 04.03.1953 (Ex. P1) reads as under:

All the collaterals of the vendor did not give their consent to the sale. The consent given by some of the collaterals is not binding on other collaterals. Para 68 of Rattigan''s Digest of Customary Law lays down that mere consent by the next reversioners and one or several reversioners of equal decree to an alienation by a widow of her late husband''s property will not debar other reversioners from suing to set aside an alienation. Although the alienation in suit was made by a male proprietor the same principle would apply. On the death of Amar Singh vendor Gurdit Singh''s son and Kishan Singh defendant No. 5 would inherit him in equal shares. If Kishan Singh gave his consent to the sale, the sons of Gurdit Singh are not debarred from contesting this alienation. I, therefore, hold that the plaintiffs are not bound by the consent of Kishan Singh and others given to the sale.....

It may be noticed that Kishan Singh, mentioned in the aforesaid judgment is in fact Bishan Singh, as Bishan Singh is defendant No. 5 in the suit and that there is no defendant in the suit by the name of Kishan Singh.

Amar Singh filed a suit for possession on 24.04.1976 relying upon the decree dated 04.03.1953. Amar Singh died during the pendency of the suit and Bishan Singh was impleaded as legal heir of the deceased. In Issue No. 8, the learned trial Court recorded a finding that during life time of Amar Singh, Bishan Singh claimed himself to be a tenant of Amar Singh, but after his death, he has changed his position and now claiming to be his sole legal heir. The said suit was dismissed by the learned trial Court on 14.02.1978 vide judgment Ex. P8. Bishan Singh, the present plaintiff, filed an appeal against the judgment and decree, as legal heir of deceased Amar Singh. Such appeal was dismissed on 02.04.1979 (Ex. P10) holding that if Bishan Singh wants to assert his own independent right, he has to file an independent suit. It is, thereafter, Bishan Singh filed the present suit for possession, out of which the present second appeal has arisen.

In the present suit for possession, the following issues were framed:

Whether the plaintiffs are owners of the suit property as heirs of Amar Singh deceased?

Whether the plaintiffs are entitled to the possession of the suit land on the basis of decree dated 04.03.1953?

2A. Whether the plaintiff is estopped from filing the present suit by his act and conduct.?

Relief.

The trial Court dismissed the suit by returning the following finding considering Issue No. 2A. The Court observed to the following effect:

...I have considered the said previous litigation and it is pertinent to note that said Bishan Singh got sufficient opportunity to be impleaded as plaintiff as well as defendant in the previous litigation, when the civil suit was filed against Waryam Singh son of Uttam Singh. But at that time, he kept silent intentionally although he was duty bound to be impleaded as necessary party at that time and thus in view of the fact that he did not avail of the opportunity at the proper time, equity demands that man should be given justice who so ever comes in the court with clean hands. Act and conduct of Bishan Singh has sufficiently been proved that he give his intentionally acquiescence to Amar Singh to sell his ancestral property and therefore, at this stage he cannot be allowed to reap the benefit which he had lost previously. From the close perusal and minuets consideration of the said evidence, both oral as well as documentary adduced by both the parties coupled with the above said arguments put forward by the learned counsel for the plaintiffs as also for the defendants, it is found that the plaintiffs are not the owners of the suit property as heirs of Amar Singh deceased and they are not entitled to the possession of the suit land on the basis of the decree dated 04.03.1953 and plaintiff No. 1 namely Bishan Singh is estopped from filing the present suit by his act and conduct. Issues No. 1, 2 and 2A are found and decided accordingly.

In appeal at the instance of Bishan Singh, the first Appellate Court recorded that only question that requires determination is; whether Bishan Singh, who had consented to the sale of land by his brother Amar Singh in favour of Waryam Singh is entitled to claim possession of the suit land on the basis of that declaratory decree or not. The first Appellate Court accepted the appeal by returning the following findings:

...Consequently, I am of the opinion that Bishan Singh plaintiff though he had given a consent to the impugned sale, is not debarred to bring the suit for possession on the basis of a declaratory decree as he was entitled to succeed to the estate of his brother to the extent of 1/3rd after his death. However, plaintiffs No. 2 to 8 have no right to ask for possession of the suit property as they were not legal heirs of Amar Singh deceased and that too in the presence of Bishan Singh.

In the present second appeal in support of the question of law framed, the learned counsel for the appellants relies upon the Supreme Court judgment reported as B.L. Sreedhar and Others Vs. K.M. Munireddy (Dead) and Others, to contend the rule of estoppel has the effect of creating substantive right as against the person estopped. Thus, Bishan Singh having consented to sale in favour of Waryam Singh, he could not have been granted decree for possession.

Learned counsel for the respondents has vehemently argued that the findings recorded by the learned trial Court as well as by the learned first Appellate Court that Bishan Singh has consented to the sale is based upon the fact that he has not sought to implead himself as plaintiff in the first suit, therefore, such inaction cannot be treated as a consent on behalf of Bishan Singh to the sale effected by Amar Singh.

I do not find that the findings that Bishan Singh has consented to the sale, can be permitted to be disputed by the plaintiffs in the present second appeal. In the decree dated 04.03.1953 (Ex. P1), a finding has been recorded that some of the collaterals have consented to the sale. The collateral, who had consented to the sale is Bishan Singh though wrongly mentioned in the judgment as Kishan Singh. Bishan Singh has not filed any appeal against the said judgment. Therefore, the said finding is final and operates res-judicata against Bishan Singh.

Still further, in the judgment of the learned trial Court, a finding has been returned that it has been sufficiently proved that sale of land by Amar Singh was an act of acquiescence by the plaintiff Bishan Singh. In the grounds of appeal dated 12.10.1981 against the judgment and decree of the learned trial Court, there is challenge to the finding of acquiescence recorded by the learned trial Court. The only substantive ground is that the declaratory decree in the matter of alienation of property enures for the benefit of all the reversioners. Even during the course of arguments before the learned first Appellate Court, the counsel for the appellants has proceeded on the assumption that Bishan Singh has consented to the sale. Even the first Appellate Court has decreed the suit after holding that Bishan Singh has consented to the sale. There is no challenge to such finding in second appeal. Therefore, the factum of consent by Bishan Singh to the sale cannot be permitted to be disputed in the present second appeal.

In B.L. Sreedhar''s case (supra), the Supreme Court has observed that the rule of estoppel creates substantive right as against the person estopped. The relevant extract reads as under:

On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim allegans contraria non est audiendus (a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem.

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Estoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law insofar as it helps to create or defeat rights, which would not exist or be taken away but for that doctrine.

Estoppel is a complex legal notion, involving a combination of several essential elements - statement to be acted upon, action on the faith of it, resulting in detriment to the actor. Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law.... Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified. AIR 1947 40 (Privy Council)

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Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.

Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. .....

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A few decisions of this Court which have illuminatingly dealt with the concept of estoppel may be noted.

In S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, , it was observed that there are three classes of estoppels that may arise for consideration in dealing with the reversioner''s challenge to a widow''s alienation. They are: (1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction, and (3) ratification i.e. agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be, that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case.

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If a man either by words or by conduct has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question the legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

In view of the said judgment, once the plaintiff is proved to have consented to the sale, he cannot be permitted to claim benefit of the declaratory decree granted in favour of his brother.

Learned counsel for the respondent relies upon a judgment of Supreme Court reported as Amarjit Kaur and Others Vs. Karamvir Singh and Others, to contend that the decree in a reversionary enures for the benefit of all the heirs even if the reversioner has consented to sale. However, a reading of the said judgment does not show that any such principle has been laid down. In the said case, Joginder Singh had filed a suit for declaration challenging the sale effected by Ajit Singh in favour of one Bishan Singh. The suit was decreed. The decree granted in favour of Joginder Singh was maintained up to the High Court, but before the Supreme Court a compromise was arrived at. Bishan Singh-vendee admitted that the land was ancestral and sale was ineffective qua the rights of Plaintiff. He relinquished his rights in the property after accepting a sum of Rs. 30,000/- from Joginder Singh. Thereafter, Joginder Singh got a mutation in favour of his son and wife. The other heirs of Ajit Singh filed a suit challenging the mutation claiming right as reversioners after the death of Ajit Singh. It was their stand that the decree passed by the Supreme Court was not binding on them, as they were not parties to the compromise. Subsequently, a suit for declaration and consequential relief of possession was filed, wherein the first Appellate Court held that Joginder Singh was entitled to the benefit of decree. In second appeal, the High Court found that no question of law was involved, as Joginder Singh alone was entitled to benefit of decree passed in the suit filed by him against Bishan. It was, in these circumstances, the Supreme Court examined the fact of compromise between Joginder Singh and Bishan Singh and fact of reversionary rights of other heirs of Ajit Singh. Before the Supreme Court, the following arguments were raised:

....There was acquiescence to the decree both by the father (vendor and Ajit Singh) and the reversioners. It was submitted that equitable principles such as estoppels, elections family settlement etc. are not mere technical rules of evidence. The ultimate aim of law is to secure justice. There are three classes of estoppels that may arise for consideration which are (1) within ambit of Section 115 of the Indian Evidence Act, 1872 (in short ''Evidence Act'') (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction and (3) ratification i.e. agreeing to abide by the transaction.

A presumptive reversioner coming under any of the aforesaid categories is precluded from questioning the transaction, when succession grants and when he becomes the actual reversioner. The principles of acquiescence may also make reversionary rights defeasible.

The Supreme Court noticed the fact that the compromise before the Court made Joginder Singh entitle to land, which otherwise could have been taken by him only after the death of Ajit Singh. Ajit Singh''s land became part of his estate and the same devolved upon all the legal heirs. Therefore, the plaintiffs could not have been deprived of their legal rights by the compromise in question. In view of the said fact, the appeal filed by Joginder Singh and by his legal heirs was dismissed. The said judgment has no applicability to a case where collateral has consented to sale. The rights conferred on the basis of sale upon the purchaser were given up in an appeal before the Supreme Court accepting the decree to avoid sale, whereas in the present case, there is no relinquishment of rights by the purchaser.

The categorical finding in all proceedings is that Bishan Singh has consented to sale in favour of Waryam Singh. Therefore, in view of B.L. Sreedhar''s case (supra), the rule of estoppel will give rise to a substantive right against the person estopped. Thus, Bishan Singh is estopped to claim possession of the land sold by Amar Singh to Waryam Singh on 13.03.1952. Therefore, the question of law is answered in favour of the defendants-appellants that the plaintiff is estopped from filing the suit for possession. Consequently, the judgment and decree passed by the learned first Appellate Court is set aside and the suit dismissed with no order as to costs.