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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