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
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-
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
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-
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
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
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
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’
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