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PETITIONER:

DHIYAN SINGH AND ANOTHER

Vs.

RESPONDENT:

JUGAL KISHORE AND ANOTHER.

DATE OF JUDGMENT:

22/02/1950

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

FAZAL ALI, SAIYID

CITATION:

1952 AIR 145 1952 SCR 478

CITATOR INFO :

F 1953 SC 98 (22)

F 1955 SC 481 (58,62)

RF 1961 SC 797 (11)

R 1971 SC1041 (4,5,6)

F 1976 SC 794 (16)

F 1976 SC 807 (39,41)

ACT:

Arbitration--Award--"Malik Mustaqil ", meaning of--Whether

conveys absolute estate--Award acted upon--Estoppel against

contesting its validity.

HEADNOTE:

S and B were sons of two brothers respectively. S died

in 1884 leaving a daughter M, surviving him. On the death

of S dispute arose between B and M. B claimed the entire

estate by survivorship, alleging that S died in a state of

jointness with him and that all the properties were joint

family properties and M was entitled only to maintenance.

The dispute was referred to arbitration and an award was

delivered. Under it the suit properties were given to M and

the rest of the estate then in dispute was given to B. The

operative part of the award stated inter alia that B, first

party, and M, the second party, were held entitled to speci-

fied shares in the properties in dispute and each had

become permanent owner (Malik Mustaqil) of his or her share.

A division was effected and ever since the date of the award

in 1884 each branch continued in possession of the proper-

ties allotted to it and each had been dealing with them as

absolute owner. The defendants claimed that the plaintiffs

were bound by the award and were in any event estopped from

challenging it.

In 1941 B's grandsons instituted a suit claiming the

properties allotted to M claiming that on the death of S his

daughter M succeeded to a limited estate and reversion

opened out on her death in 1929 and the plain tiffs were

entitled as next reversioners, as M's son had predeceased

her. The defendants (Ms grandsons) alleged that the property

possessed by M consisted partly of property which belonged

to her and partly of property which belonged exclusively to

her father to which she succeeded as daughter.

Held, that the award gave an absolute estate to M as the

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words "Malik Mustaqil" were strong. clear and unambiguous

and were not qualified by. other words and circumstances

appearing in the same document in the present case.

Held further. that even if the award be assumed to be

invalid the plaintiffs' claim was barred by the plea of

estoppel. There was estoppel against B because by his

conduct he induced M to believe that the decision of the

arbitrator was fair and reasonable and both the parties

would be bound by it and he induced her to act greatly to

her detriment and to alter her position by accepting the

award and never attempting to go behind it as long

479

as he lived; there was estoppel against B's sons because it

descended to them as they stepped into his shoes, and fur-

ther there was independent estoppel against B's son K by his

acts and conduct as evidenced in this case.. There was

estoppel against plaintiffs who claimed through their father

K.

JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 8 of

1951.

Appeal from the judgment and decree dated 12th October,

1944, of the High Court of Judicature at Allahabad (Allsop

and Malik JJ.)in First Appeal No. 374 of 1941 arising out of

a Decree dated 31st July, 1941, of the Court of the Civil

Judge, Moradabad, in Original Suit No. 9 of 1941.

Bakshi Tek Chand (S. K. Kapoor, with him) for the appel-

lant.

Achhru Ram (Jwala Prasad, with him) for the respondent.

1952. February 22. The judgment of the Court was deliv-

ered by

BoSE J.--This is a litigation between two branches of a

family whose common ancestor was one Megh Raj Singh The

family tree is as follows:

Megh Raj Singh

Jawahar Singh Madan Singh

Shankar Lal(d- 1884) Brijlal (d. 1889 or (1890)

Daughter: Met. Mohan Dei

(d. Oct 1929) Kishan Lal Mahabir Prasad

Husband: Narain Das (d. 21-5-1940) (d. 1921)

Shri Kishan Das Mst. Deoki Jugal Kishore Amar Nath

(d.march 1929) (d. 1894) Plff. 1 Plff.2.

Dhiyan Singh Jai Bhagwan Singh

Deft. 1 Deft. 2 Ghas Ram Onkar

Prasad

The dispute is about property which, according to the

plaintiffs, formed part of Shanker Lal's estate. The plain-

tiffs state that the two branches of the family were sepa-

rate at all material times; that on

480

Shanker Lal's death in 1884 his daughter Mst. Mohan Dei (the

defendants' grandmother) succeeded to a limited estate.

The reversion opened out on her death in October 1929 and

the plaintiffs are entitled as the next reversioners, for

Mst. Mohan Dei's son Shri Kishan Das predeceased her.

The defendants admit that Shanker Lal was separate from

the other branch of the family. They divide the property

which their grandmother Mst. Mohan Dei possessed into two

categories. First, there was property which they say be-

longed to her. These are properties which, according to

them, she purchased or obtained under mortgages in her own

right. Next, there were properties which belonged exclu-

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sively to her father and to which she succeeded as daughter.

On Shanker Lal's death disputes arose between Shanker Lal's

father's brother's son Brijlal (the plaintiffs' grandfa-

ther) and the defendants' grandmother Mst. Mohan Dei.

Brijlal claimed the entire estate by survivorship, his

allegation being that Shanker Lal died in a state of joint-

ness with him and that all the properties were joint family

properties. This dispute was referred to arbitration and an

award was delivered. Under it Mst. Mohan Dei was given the

suit properties as absolute owner and the rest of the estate

then in dispute was given to Brijlal, A division was ef-

fected accordingly and ever since, that is to say, from 21-

12-1884, the date of the award, down to 26-3-1941, the date

of the suit, each branch has been in separate and uninter-

rupted possession of the properties respectively allotted to

it and each has been dealing with them as absolute owner.

The defendants claim that the plaintiffs are bound by this

award and are in any event estopped.

The plaintiffs lost in the first Court but won in the

High Court. The defendants appeal.

The first question is about the nature of the award.

The defendants say that it gave Mst. Mohan Dei an absolute

estate.. The plaintiffs deny this and say she obtained only

a limited estate. In our opinion, the defendants are right.

481

The question at issue is a simple one of construction. The

award is Ex. A-1. The operative portion runs thus:

"Having regard to the specifications give above, Brij

Lal, first party, and Musammat Mohan Devi, the deceased's

female issue, second party, have been held entitled to

shares, worth Rs. 28,500 and Rs. 42,482-10-0 respective-

ly in the said properties; and accordingly...two lots have

been made and the first lot is allotted to the first party

and the second lot to the second party; and henceforth the

parties shall have no claim or liability against each other;

and each party has become permanent owner (malikmustaqil) of

his or her share; and each party should enter in proprietary

possession and occupation of his or her respective

share...... "

The underlining is ours.

We do not think the words admit of any doubt, particu-

larly as the words "malik mustaqil" have been used: see Ram

Gopal v. Nand Lal and Others (1) and Bishunath Prasad

Singh v. Chandika Prasad Kumari (2). But it was argued

that the award must be viewed as a whole and that certain

earlier passages show that this could not have been the

intention. ]he passages relied on are these. First, the

finding that the properties claimed by Mst. Mohan Dei as her

own really belonged to Shanker Lal. He had purchased some

and acquired others through mortgages in her name but she

was only a benamidar and had no title to them. Second, that

some of the properties in dispute were ancestral and the

rest sell acquired, though whether with the help of ances-

tral funds or not the arbitrator was unable to determine.

Third, the arbitrator's view of the Hindu law, namely that-

"the brother should be the owner of the joint ancestral

property and the daughter who has a male issue should be

owner of the self-acquired property."

And lastly, this passage--

(1) [1950] S.C.R. 766 at 773.(2)(1933) 60 I.A. 56 at 61 &

62.

482

"Furthermore, when the 2nd party (Mohan Dei) has inher-

ited no property from her husband, she, in case of getting

this share, will certainly settle down in Amroha and will

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make her father's haveli as her abode and thus the haveli

shall remain a bad as heretofore, and in this way the de-

ceased's name will be perpetuated; and it is positive that,

after the Musammat, this property shall devolve on her son,

who will be the malik (owner) thereof, and later the de-

scendant of this son will become the owner thereof."

We do not think these passages qualify the operative

portion of the award and are unable to agree with the

learned Judges of the High Court who hold they do. In our

opinion, the arbitrator was confused in his mind both as

regards the facts as well as regards the law. His view of

the law may have been wrong but the words used are, in our

opinion, clear and, in the absence of anything which would

unambiguously qualify them, we must interpret them in their

usual sense.

Some cases were cited in which the word "malik", and

in one case the words "malik mustaqil" were held to import a

limited estate because of qualifying circumstances. We

think it would be pointless to examine them because we are

concerned here with the document before us and even if it be

conceded that words which would ordinarily mean one thing

can be qualified by other words and circumstances appearing

in the same document, we are of opinion that the passages

and circumstances relied on in this case do not qualify the

strong, clear and unambiguous words used in this document.

The learned counsel for the plaintiffs-respondents had to

search diligently for the meaning for which he contended in

other passages and had to make several assumptions which do

not appear on the face of the award as to what the arbitra-

tor must have thought and must have intended. We are not

prepared to qualify clear and unambiguous language by

phrases of dubious import which can be made to coincide with

either view by calling in aid assumptions of fact about

whose existence we can only guess

483

The award was attacked on other grounds also. It was

urged, among other things, that the arbitrator had travelled

beyond the terms of his reference in awarding Mst. Mohan Dei

an absolute interest. It was also urged that even if Brij-

lal was bound his son Kishan Lal, who did not claim through

him but who had an independent title as reversioner to

Shanker Lal, would not be bound, and it was contended that

if Kishan Lal was not bound the plaintiffs would not be

either. But we need not examine these points because we do

not need to proceed on the binding nature of the award.

Even if the award be invalid we are of opinion that the

plaintiffs' claim is completely answered by the plea of

estoppel.

Now it can be conceded that before an estoppel can

arise, there must be, first, a representation of an existing

fact as distinct from a mere promise de futuro made by one

party to the other; second, that the other party, believing

it, must have been induced to act on the faith of it; and

third, that he must have so acted to his detriment.

It will be necessary to deal with this in stages and

first we will consider whether there was any estoppel

against Brijlal. It is beyond dispute that he laid serious

claim to the property in 1884. He claimed that he was joint

with Shanker Lal and so, on Shanker Lal's death he became

entitled to the whole of the estate and that Mst. Mohan Dei

had only a right of maintenance. Whether he would have had

difficulty in establishing such a claim, or indeed whether

it would have been impossible for him to do so, is wholly

immaterial. The fact remains that he pressed his claim and

was serious about it, so much so that he was able to per-

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suade the arbitrator that he had an immediate right to part

of the estate. Mst. Mohan Dei, on the other hand, resisted

this claim and contended that she was entitled to separate

and exclusive possession, and in any event, that she was

entitled in absolute right to a part of the property. On

the facts which now emerge it is evident that Brijlal had no

right and that his hopes of one day succeeding as

484

reversioner were remote. Mst. Mohan Dei had a son Shri

Kishan Das who was the next presumptive reversioner and as

the boy was a good deal younger than Brijlal, Brijlal's

chances were slim. Actually, the boy survived Brijlal by

nearly forty years. Brijlal died in 1889or 1890 and the boy

did not die till March 1929. Had he lived another eight or

nine months he would have succeeded and the plaintiffs would

have been nowhere. Now this dispute, seriously pressed by

both sides, was referred to arbitration. It is neither here

nor there whether the award was valid, whether the decision

fell within the scope of the reference or whether it had any

binding character in itself. Even if it was wholly invalid,

it was still open to the parties to say: Never mind whether

the arbitrator was right or wrong, his decision is fair and

sensible, so instead of wasting further time and money in

useless litigation, we will accept it and divide the estate

in accordance with his findings. That would have been a

perfectly right and proper settlement of the dispute, and

whether it bound third parties or not it would certainly

bind the immediate parties; and that in effect is what they

did. By his conduct Brijlal induced Mst. Mohan Dei to be-

lieve that this would be the case and on the faith of that

representation, namely the acceptance of the award, he

induced Mst. Mohan Dei to act greatly to her detriment and

to alter her position by accepting the award and parting

with an appreciable portion of the estate, and he himself

obtained a substantial advantage to which he would not

otherwise have been entitled and enjoyed the benefit of it

for the rest of his life; and to his credit be it said, he

never attempted to go behind his decision. In any event, we

are clear that that created an estoppel as against Brijlal.

In our opinion, the present case is very similar to the

one which their Lordships of the Privy Council decided in

Kanhai Lal v. Brij Lal (1). There also there was a dispute

between a limited owner and a person who, but for an un-

proved claim (adoption) which he

(1) (1919) 45 I.A. 118.

485

put forward, had no right to the estate. The dispute was

taken to the courts but was compromised and according to the

agreement the property was divided between the two rival

claimants and the agreement was given effect to and acted on

for a period of twenty years. Later, the succession opened

out and the other party to the compromise, who by then had

stepped into the reversion, claimed the rest of the estate,

which had been assigned to the limited owner, against her

personal heirs. The Judicial Committee rejected the claim

on the ground of estoppel and held that even though the

plaintiff claimed in a different character in the suit,

namely as reversioner, he having been a party to the compro-

mise and having acted on it and induced the other side to

alter her position to her detriment, was estopped. We do

not think the fact that there was a voluntary compromise

whereas here there was the imposed decision of an arbitra-

tor. makes any difference because we are not proceeding on

the footing of the award but on the actings of the parties

in accepting it when they need not have done so if the

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present contentions are correct.

It is true that in one sense a question of title is one

of law and it is equally true that there can be no estoppel

on a question of law. But every question of law must be

grounded on facts and when Brijlal's conduct is analysed it

will be found to entail an assertion by him that he admitted

and recognised facts which would in law give Mst. Mohan Dei

an absolute interest in the lands awarded to her. It was

because of that assertion of fact, namely his recognition

and admission of the existence of facts which would give

Mst. Mohan Dei an absolute interest, that she was induced to

part with about one-third of the property to which Brijlal,

on a true estimate of the facts as now known, had no right.

There can be no doubt that she acted to her detriment and

there can, we think, be equally no doubt that she was in-

duced to do so on the faith of Brijlal's statements and

conduct which induced her to believe that he accepted all

the implications of the

63

486

award. But in any event, we are clear that Brijlal would

have been estopped. The nature of the dispute and the de-

scription of it given in the award show that there was

considerable doubt, and certainly much dispute, about the

true state of affairs. Even if the arbitrator was wholly

wrong and even if he had no power to decide as he did, it

was open to both sides to accept the decision and by their

acceptance recognise the existence of facts which would in

law give the other an absolute estate in the properties they

agreed to divide among themselves and did divide. That, in

our opinion is a representation of an existing fact or set

of facts. Each would consequently be estopped as against

the other and Brijlal in particular would have been estopped

from denying the existence of facts which would give Mst.

Mohan Dei an absolute interest in the suit property.

We turn next to his son Kishan Lal. Brijlal died in

1889 or 1890. At that date Mst. Mohan Dei's son Shri Kishan

Das was alive and was the next presumptive reversioner.

Brijlal's sons therefore had no more right to that portion

of his estate which was assigned to Brijlal than Brijlal

himself. But they took possession and claimed through their

father. ]hey did not claim an independent title in them-

selves, and, as we know, they had no other title at that

date. They were therefore in no better position than Brij-

lal and as Brijlal would have been estopped, the estoppel

descended to them also because they stepped into his shoes.

This would be so even if Brijlal had claimed the property

independently for himself, which he did not; but much more

so as he claimed in joint family rights and evidently acted

as karta or manager on behalf of his family.

But apart from this, there was also an independent

estoppel in Kishan Lal. We have said, he had no right to

this part of the estate when his father died apart from the

award. But nevertheless he took possession along with his

brother and the two of them treated the property as their

own and derived benefit

487

from it. They partitioned the estate between themselves and

sold away parts of it to third parties. Kishan Lal knew of

the award. He knew that mutation had been effected in

accordance with it and possession taken by Brijlal under it

and that the rest had been retained by Mst. Mohan Dei. His

retention of the property therefore and his continuing to

deal with it on the basis of the award indicated his own

acceptance of the award and, therefore, by his acts and

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conduct, he represented that he also, like his father,

admitted the existence of facts which would in law give Mst.

Mohan Dei an absolute estate; and further, he allowed Mst.

Mohan Dei to deal with the estate as her own, for she, on

her part. also acted on the award and claimed absolute

rights in the property assigned to her. She dealt with it

on that footing and gifted it in that right to her grand-

sons, the contesting defendants, on 4th April, 1929. Muta-

tion was effected and Kishan Lal raised no objection. We see

then that Brijlal retained possession of property to which

he was not entitled for a period of five or six years from

1884 to 1889 or 1890 and induced Mst. Mohan Dei to part with

it by representing that he accepted the award and her abso-

lute title to the rest, and after him Kishan Lal and his

brother between them enjoyed the benefit of it from 1889 or

1890 down to October 1929 when Mst. Mohan Dei died, that is,

for a further forty years, and led Mst. Mohan Dei to believe

that they also acknowledged her title to an absolute estate.

We have no doubt that down to that time Kishan Lal was also

estopped for the reasons given above. Had he questioned the

award and reopened the dispute Mst. Mohan Dei would at once

have sued and would then for forty years have obtained the

benefit of property from which she was excluded because of

her acceptance of the award on the faith of Brijlal's asser-

tion that he too accepted it. Kishan Lal's inaction over

these years with full knowledge of the facts, as is evident

from the deposition of D.W. 2, Dhiyan Singh, whose testimony

is uncontradicted, and his acceptance of the estate with all

its consequential benefits, unquestionably creates an

estoppel in him. This witness tells us that--

488

"Kishanlal always accepted this award and acted upon it."

He qualifies this in cross-examination by saying that

Kishan Lal had also objected to it but the witness did not

know whether that was before or after Mst. Mohan Dei's

death. The documents filed show it was after, so there is

no reason why the main portion of his statement which is

uncontradicted, and which could have been contradicted,

should not be accepted.

In March, 1929, Mst. Mohan Dei's son Shri Kishan Das

died and Kishan Lal thereupon became the next presumptive

reversioner, and in October, 1929, when the reversion opened

out the estate vested in him, or rather would have vested in

him but for the estoppel. The question therefore is, did he

continue to be bound by the estoppel when he assumed a new

character on the opening out of the reversion ? We have no

doubt he did. The decision of the Judicial Committee which

we have just cited, Kanhai Lal v. Brijlal(1), is, we think,

clear on that point. Although other reversioners who do not

claim through the one who has consented are not bound. the

consenting reversioner is estopped. This is beyond dispute

when there is an alienation by a limited owner without legal

necessity. See Ramgouda Annagouda v. Bhausaheb (2) where

the ground of decision was

".......but Annagouda himself being a party to and

benefiting by the transaction evidenced thereby was preclud-

ed from questioning any part of it."

In our opinion, the same principles apply to a case of the

present kind.

It was contended, however, on the strength of Rangasami

Gounden v. Nachiappa Gounden(3) and Mr. Binda Kuer v.

Lalitha Prasad(4), that even if Kishan Lal did take posses-

sion in 1889or 1890 on the strength of a title derived from

his father, that would not have precluded him from asserting

his own rights in a different character when the succession

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opened

(1)(1918) 45 I.A 118. (2) (1927) 54 I.A. 396 at

403.

(3) (1919) 46 I.A. 72. (4) (1936) A.I.R. 1936 P.C. 304

at 308.

489

out. Reliance in particular was placed upon page 808 of the

latter ruling. In our opinion, that decision is to be

distinguished.

In that case the reversion did not fall in till 1916.

Long before that, namely in 1868, the next presumptive

reversioners entered into a compromise whereby the grandfa-

ther of one Jairam who figured in that case obtained a good

deal more than he Would have been entitled to in the ordi-

nary way. But for the compromise this grandfather would

have got only one anna 12 gundas share, whereas due to the

compromise he got as much as 2 annas 4 gundas, The actual

taking of possession was however deferred under the compro-

mise till the death of one Anandi Kuer. She died in 1885

and on that date Jairam was entitled to his grandfather's

share as both his father and grandfather were dead. Jairam

accordingly reaped the benefit of the transaction. But it is

to be observed that the extra benefit which he derived was

only as to a 12 gundas share because he had an absolute and

indefeasible right to 1 anna 12 gundas in any event in his

own right under a title which did not spring from the com-

promise.

Jairam lost 1 anna 4 gundas to a creditor Munniram and

out of the one anna which he had left from the 2 annas 4

gundas he sold 13 gundas to the plaintiffs for a sum of Rs.

500. Now it is evident that on those facts it is impossible

to predicate that the 13 gundas which the plaintiffs pur-

chased came out of the extra 12 gundas which Jairam obtained

because of the compromise rather than out of the 1 anna 12

gundas to which he had a good and independent title anyway;

and of course unless the plaintiffs' 13 gundas could be

assigned with certainty to the 12 gundas it would be impos-

sible to say that they had obtained any benefit from the

compromise. The Judicial Committee also added that even if

it was possible to assign this 13 gundas with certainty to

the 12 gundas it by no means followed that the plaintiffs

admitted that fact nor would that necessarily have given

them a benefit under the compromise. They had the right to

contest 'the

490

position and gamble on the possibility of being able to

prove the contrary. Their Lordships added-

" Unless the plaintiffs' individual conduct makes it

unjust that they should have a place among Bajrangi Lal's

reversioners their legal rights should have effect."

In the other case, Rangasami Gounden v. Nachiappa Goun-

den(1), their Lordships' decision about this matter turned

on the same sort of point: see page 87.

The present case is very different. When Kishan Lal

took possession of his father's property he held by virtue

of the award and under no other title, and for forty years

he continued to derive benefit from it. Accordingly, he

would have been estopped even if he had claimed in a differ-

ent character as reversioner after the succession opened

out.

It was conceded that if the estoppel against Kishan Lal

enured after October 1929, then the plaintiffs, who claim

through Kishan Lal, would also be estopped.

The appeal succeeds. The decree of the High Court is set

aside and that of the first Court dismissing the plaintiffs'

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claim is restored. Costs here and in the High Court will be

borne by the plaintiffs-respondents.

Appeal allowed.

Agent for the appellants: Ganpat Rai.

Agent for the respondents: Sardar Bahadur Saharya.

(1) (1919) 46 I.A. 72.

491