Nidamarthu Balasurya Bheemaraju vs Changati Mrutyanjayudu and Another

Ramesam, J.—The facts of this second appeal may be stated as follows: Bhujanga Rao and Veeresalingam were two cousins being

grandsons of two brothers. They had a number of family lands which they were enjoying in common, the lands not being divided by metes and

hounds but they were divided in interest and Bhujanga Rao was living in distant places and Veeresalingam was managing the family lands. Bhujanga

Rao died in 1885. Before his death he left a will dated 24th December 1884 by which he gave his share of the property to his daughter

Mahalakshmamma for life and after her death to his grandson the present plaintiff who was the son of another daughter of his, Kanakamma. After

Bhujanga Rao''s death apparently the joint possession and enjoyment continued. Veeresalingam died in 1896 leaving the defendant his son a boy

of 13. The lands were being leased by the defendant''s maternal uncle up to 1905 when the defendant refused to give Mahalakshmamma her share

of the property. Then she filed O.S. No. 11 of 1905 to recover her share of the property. The plaint in that suit is now Ex. B. The written

statement in that suit is not filed. The suit was compromised. Under this compromise Mahalakshmamma was given half-share of all the family lands

except in the suit land which was wholly given away to the defendant. The draft of this compromise is Ex. 2 and Ex. 4 is a public copy of the

petition filed in Court. Under Clause 1 of this compromise the suit land was wholly given away to defendant 1. Ex. 2 seems to be in the handwriting

of the present plaintiff. There is a decree in terms of the compromise. Mahalakshamamma died on 22nd August 1922. The present suit was

brought by the plaintiff in December 1923 to recover half of the suit land from the defendant on the basis of Bhujanga Rao''s will. Both the lower

Courts have given a decree to the plaintiff. The defendant appeals.

Three points have been argued before me. The first is that the plaintiff is estopped from claiming the suit land as he was managing the litigation of

1905 on behalf of Mahalakshmamma, as he brought about the compromise and as he knew of it and actually wrote the draft Ex. 2. In support of

this contention Mr. Kameswara Rao, the learned advocate for the appellant relied on Savage v. Foster 88 E.R. 299, and other cases to be

mentioned presently. In the case of Savage v. Foster 88 E.R. 299, the person on whom the land was settled namely Williams did not know that

Margaret had only a life interest and Mrs. Poster led him to believe that Margaret was competent to alienate the land. In the present case the

defendant knew the contents of the will and he admits this in his deposition, and therefore there is no question of his being made to believe in the

title of Mahalakshmamma by the conduct of the present plaintiff. But apart from this in that case Williams entered into a marriage alliance on

account of the marriage settlement. But in this case there is nothing which the defendant did to his detriment on account of his. belief. The decision

in Savage v. Foster 88 E.R. 299, was distinguished on the ground mentioned in Nicholl v. Jones [1867] 3 Eq. 709. Vice Chancellor Page says:

Such was the case of Savage v. Foster where a married woman, knowing that arrangements as to her property were being made, stood by, while

the person making those arrangements did not know her position, but supposed that he was dealing with a person competent to deal with the

whole estate etc.

The next case relied on by the learned advocate for the appellant is Ananda Chandra Sen v. Parbati Nath Sen [1906] 4 C.L.J. 198. There one

of the joint owners used the land in excess of his rights to the knowledge of the other and the other stood by, and it was held that he was bound by

his implied assent and the decision in De Bussche v. Alt [1878] 8 Ch. D. 286, was cited in support of the conclusion. In the present case we have

not got any user of the land to the detriment of the real owner. In De Bussche v. Alt [1878] 8 Ch. D. 286 the doctrine of estoppel is enunciated as

follows:

If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in

such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its

being committed he cannot afterwards be heard to complain of the act.

In the present case we have not got any act infringing upon the plaintiff''s right as remainderman. Neither the decision in Ananda Chandra Sen v.

Parbati Nath Sen [1906] 4 C.L.J. 198, nor the decision in De Bussche v. Alt [1878] 8 Ch. D. 286 applies to this case. The nest case relied on is

Hunsden v. Chaynay 23 E.R. 703. There the son declared that he was entitled to certain land after the death of the mother. The mother was silent

and did not repudiate this assertion and was a witness to the deed of marriage settlement by which the land was settled to the issue of the marriage.

It was held that the mother was estopped. Clearly the issue of the marriage could not know that the son had only limited interest. I do not think

therefore a case of estoppel has in this case been made out.

The second point raised by the learned advocate for the appellant relates to the title and possession of Bhujanga Rao to the suit land. So far as

the title is concerned, the District Munsif finds it upon the evidence, and there is evidence to support the finding, that the suit land was ancestral

family karnam service mam and that Bhujanga Rao and Veeresalingam were jointly enjoying it as tenants-in-common. The defendant''s case is that

Bhujanga Rao gave away the suit land to Veeresalingam to be enjoyed by him solely. The gift is oral and this was rightly discredited. On appeal

this point as to title was not urged before the appellate Court. The fifth point before the lower appellate Court related only to possession. So far as

possession is concerned, it is obvious that Bhujanga Rao and Veeresalingam were tenants-in-common and were enjoying them jointly, and until

adverse possession is made out on the part of the defendant there is no question of Bhujanga Rao or persons claiming through him losing their

rights. No doubt if at the time of a person''s death adverse possession against him might have already begun and his heirs sue, they may have to

show that the deceased was in possession up to the date of his death and the suit is thereby within time. But in the present case as already stated

Bhujanga Rao and Veeresalingam being tenants-in-common, there can be no question of adverse possession and the possession of the other tenant

is possession of Bhujanga Rao. I do not think there is anything in this point.

The third point argued by the learned advocate for the appellant is that in the litigation of 1905 Mahalakshmamma represented also the plaintiff

and the compromise is a bona fide compromise and therefore binds also the plaintiff. It is true that in Katama Nachiar v. The Rajah of Shivaganga

[1862] 9 M.I.A. 539, it was held that a Hindu widow who represents the whole estate in a litigation represents also the reversioners and at p. 604

Turner, L. J. says that her position is like the position of tenants-in-tail in Courts in England. This very observation of the Lord Justice shows that a

life tenant is incapable of representing the remainderman. This case therefore does not help the appellant. The other case relied on is Prosunno

Chunder Bhuttacharjee v. Kristo Chyunno Pal [1878] 4 Cal. 342. In that case a person in possession of a deceased''s estate was sued as

representing the estate by some person to whom a debt was due from the estate. It was held that the executor is bound by that judgment as one

representing the whole estate In the present case there is no need to imply or infer that Mahalakshmamma when suing to establish her life estate

sought to represent all the interests in remainder and it is doubtful whether she can do so even if she wishes to. There is no resemblance between

the facts of this case and the case in Prosunn Chunder Bhuttacharjee v. Kristo Chytunno Pal. In that case the person representing the estate was

defendant and he was sued and could be sued only as a person representing the estate. Otherwise the suit could not lie. Therefore that case does

not help the appellant. I think all the points urged by the learned advocate for the appellant have been disposed of. The second appeal fails and is

dismissed with costs.