Dhiyan Singh and ANR V. Jugal Kishore and
ANR  INSC 1 (22 February 1950)
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)
", meaning of--Whether conveys absolute estate--Award acted upon--Estoppel
against contesting its validity.
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 specified 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 properties
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
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 further 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
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
Bakshi Tek Chand (S. K. Kapoor, with him) for
Achhru Ram (Jwala Prasad, with him) for the
1952. February 22. The judgment of the Court
was delivered 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(d1884) 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 plaintiffs state that the
two branches of the family were separate 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 belonged 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 exclusively 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' grandfather) 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 jointness
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 effected accordingly and ever
since, that is to say, from 2112-1884, the date of the award, down to
26-3-1941, the date of the suit, each branch has been in separate and uninterrupted
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
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 respectively 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,
particularly 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 ancestral
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)  S.C.R. 766 at
773.(2)(1933) 60 I.A. 56 at 61 & 62.
482 "Furthermore, when the 2nd party
(Mohan Dei) has inherited 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 deceased'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 descendant 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
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 arbitrator 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 Brijlal 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 future 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 persuade 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 believe
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 unproved claim (adoption) which he (1) (1919) 45 I.A.
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 compromise 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 arbitrator. 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 induced 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 description 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
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 themselves, and, as we know, they had no other title at
that date. They were therefore in no better position than Brijlal 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
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 grandsons, the contesting defendants, on 4th April, 1929.
Mutation 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 absolute
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 assertion
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
precluded 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 possession 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
In that case the reversion did not fall in
Long before that, namely in 1868, the next
presumptive reversioners entered into a compromise whereby the grandfather of
one Jairam who figured in that case obtained a good deal more than he Would
have been entitled to in the ordinary 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 compromise 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 compromise.
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 purchased 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 impossible
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 Gounden(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 different character as reversioner after the succession opened
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
Agent for the appellants: Ganpat Rai.
Agent for the respondents: Sardar Bahadur
(1) (1919) 46 I.A. 72.