Judgment

Lawrence Jenkins, C. J.:-

This is a suit to recover possession of a house in the Girgaum Road brought by Sitabai, the widow of Ramchandra Moroba, and her sister Narmadabai, against Vasantrao Nana Moroba and Wamanrao Nana Moroba, who claim to be the owners of it by virtue of a purchase from a mortgagee of the plaintiffs brother, Ramkrishna Shivshanker. The execution of the documents, on which the defendants rely, is not contested- the question is, what power the brother had to pass any interest in the property. The title alleged by the plaintiffs is this. The house formerly belonged to Juganath Shankershett, and he by his will, dated the 1st of July 1864, gave it to his daughter Nathoobai. It is common ground before me that on her fathers death this lady thereby acquired an absolute and heritable interest in the property. Nathoobai died on the 7th of July 1884, leaving a son, Ramkrishna, and two daughters, the plaintiffs in this suit. These facts, the paintiffs contend, entitle them to the sole ownership of the property.

The defendants on the other hand deny that this is the legal result and maintain that on his mothers death the not having been her technical stridhan descended to

Ramkrishna as his mothers sole heir, or that at any rate he became by devolution an equal sharer with his sisters. But over and above that they setup other defences to the claim, the nature of which is indicated in the following issues:-

1. Was not the house built wholly or partially with the money of Ramkrishna?

2. Whether on death of Nathubai her interest in house and land did not devolve on Ramkrishna by Hindu Law and not upon the plaintiffs?

3. Whether Nathubai did not make a will devising house and land to Ramkrishna?

4. Whether the plaintiffs did not make over to Ramkrishna their interests if any in the house and land

5. Whether Ramkrishna was not with the plaintiffs consent allowed to appear as the owner of the house and land and whether the sale to the defendants is now voidable because Ramkrishna had no power to mortgage to the mortgagee by whom it was sold?

6. Whether plaintiffs right is not barred by limitation?

7. Whether the plaintiffs are not estopped from denying the validity of the sale by reason of (a) their knowingly allowing Ramkrishna to mortgage the property as his own, and (A) the previous mortgagees to advertising the property as Ramkrishnas and by raising no objection to the sale of the house by the mortgagees where the defendants became purchasers with knowledge of the same,

8. If issue 1 is in the affirmative, are the defendants entitled to a charge to any and what extent?

9. Are the plaintiffs entitled to relief prayed or any part there of.

The first point for determination is how on Nathoobais death the property devolved. The plaintiffs argue that the descent must be determined by the rules of the Mitahahara- the defendants, on the other hand, maintain that in this case the Mayukha must be accepted as the ruling authority- for they concede that under the Mitakshara the property devolved on the plaintiffs to the exclusion of their brother.

The first point, therefore, to be decided is, whether the descent on Nathoobait death was governed by the Mitakshara, or the Mayuhka.

If regard be had to the law in the Island of Bombay, the actual site of the property in dispute, there can be no dor that the Mayuhka must be accepted as the prevailing author but then it is said, if regard be had to the familys origin Mitafakara will apply. The prevalence in any part of a special course of descent in a family, differing ordinary course of descent in that place of the property of people of that class or race stands on the footing of usage or custom of the family: Soorendronathroy v. Berramonee (1). This usage or custom can be established by proof that the family has migrated from a district where the law set up prevails, but it lies on him who alleges it to prove the family originally came from a district so circumstanced. This, however, the plaintiffs have failed to show: the only evidence before me points to the conclusion that the family migrated from a district, where, according to decided authority, the Mayukha holds the first place. I refrain from elaborating this part of the case, as it was not pressed before me in argument, and I will content myself with saying that the rights of the parties in this suit must be governed by the doctrines of Nilkantha.

This conclusion involves an inquiry into the rules of the Mayukha as to the devolution of stridhan. Three views have been presented to me as possible: 1st, that it descended on the plaintiffs alone, 2nd that Ramkrishna was his mothers sole heir- and thirdly that the brother and sisters inherited equally. Each of these theories is said to find support in the text of Nilkantha. Stridhan is the subject-matter of Chapter 4, S. 10 of the Mayukha.

The Chapter, speaking generally, commences with an enumeration of the various kinds of property that are stridhan and a nature of a womans interest, and it is not until one-third of the way through the Chapter the topic of succession is touched.

Reading from the text of Mandlika translation I find the matter dealt with as follows: -

.Manu thus declares the right of succession, after a -womans decease, to the Anvadheya (species of stridhana) - (Chapter IX. V. 195):-" The Anvadheya, and that wealth which was given through affection by the husband, shall be inherited by her children (even) if her husband be alive." The same author further explains the term Praja (children) (Ch. D. V 192):-" the death of the mother, all the uterine bro­thers as well as all the uterine sisters, equally divide the maternal wealth. The comment of the Mitahhara (here) is (that) the companionship (in the act of division) is to be among sons, where the right (to succession) has accrued to them by the non-existence of daughters and the like- and among daughters where the (said) right accrues to them alone, the association of daughters and sons which follows from no rule is (not meant to be) laid down. Others (however) say that in the case of Anvadheya and a gift through affection, the association of daughters and sons is independently laid down (by this text),

"Among sisters, Manu states a distinction (Ch. IX, V. 192):-" Stridhana (womans property) goes to her children (for) the daughter is a sharer thereof, provided she be not given away (in marriage): but if married, she receives a mere re­cognition of right." Tadansini (means) the receiver of a share equal to (that of the) son Apratta unmarried The meaning is that if an unmarried daughter exists, the married one receives something (small) only (in token of) recognition. In default of an unmarried daughter, the share of the married daughters is equal to (that of the) brothers, according to the text of Katyayana (which says):-" Sisters having husbands should share with brothers."

It is clear then from this that, if this house was the Anvadheya of Nathoobai, Ramkrishna and his sisters shared equally.

Each Bide, however, has contended as its first line of argu­ment, that it was not Anvadheya,

The plaintiffs founded their contentions principally on an unreported decision * of Mr. Justice Green, who under circum­stances, bearing a close resemblance to the present, held that sisters excluded brothers.

In the course of his judgment the learned Judge remarked: " Paras 13 to 16 treat of succession to a womans property not however womans property generally, but only what a woman has received after marriage from the family of her marriage and what her lord may have given her through affec­tion. According to these texts such property goes to her children, sons and daughters alike." Then later on he says: - "The scheme of succession to womans peculiar property as laid down in this section of the Mayukha seems to me to be this: whatever belongs to the six kinds specified by Mam as construed by later authorities there mentioned goes to her daughters, that which has been given by her husband subsequent to marriage or as a token of affection goes to her children male or female equally, and that which has come to a married woman from other sources though in some aspects it is considered as stridhan as for instance with reference to protection from the husband yet descends as if the owner was a male and so would go to her sons if she has any to the exclusion of daughters. I cannot see why what a woman has succeeded to by title of inheritance from her own father, mother or brother should not come within the three last kinds specified by Manu as having "been received from her brother, mother or father " though as to what comes to her by gift subsequent or by inheritance from her husband would not do so. The distinctions in this chapter seem to depend not on the form of acquisition but on the source and occasion from and on which the property comes and though of course acquisition by will is not mentioned in this chapter I cannot see any reason for distinguishing what a married woman takes subsequently to marriage from her own mother by gift inter vivo (which I apprehend would be strictly stridhan according to Mayukha) and what she takes by a testamentary gift from her mother a title which is now treated by our Courts as much more analogous to that by gift inter vivos than it is in England. I am of opinion that the property bequeathed to Narbuddabai to her mothers will was Narbuddabais stridhan in the strict sense of the word and descended on Narbuddabais daughters to the exclusion of her"

Now it is manifest, I think that the learned Judge had before him, Mr. Borrodailes translation of the Mayukha, and this is a consideration of importance in dealing with his judg­ment. The 13th verse of Chapter IV of Section X is there rendered as follows:-

The right of succession after a womans decease, that [part of her] private property which is entitled a gift subsequent [Anvadheya] is thus settled by Manu: " what she received after marriage [Anvadheya] from the family of her husband, and what her lord may have given her through affection [pritena] shall be inherited even if she die in his life time, by her children Praja]." The term children are thus explained by the same author: .On the death of the mother, let all the uterine brothers, and the uterine sisters, equally divide the maternal estate."

In Mr. Mandliks translation, published in 1880, subse­quently to the judgment, this verse commences the passage from that translation I have already read.

It will be seen that there is a marked difference between the two: Mr. Borrodailes translation limits Anvadheya, to that which is received from the family of the husband- in Mr. Mandliks there is no such qualification. With only Mr. more especially where they lay down a rule of property, I think there are here circumstances which entitle me to say I am not bound to follow that decision in its entirety.

In the first place the learned Judge laboured under the disadvantage I have indicated of only having before him Borro dailes translation. Next the decision has never found its way into the reports so that there is no likelihood of dealings in reliance on it. And lastly it has since been laid down by Sir Charles Sargent in Ashabai v. Haji Tyeb Haji Rahimtullah (2) that ornaments given to a Hindu lady after her marriage either by her husband or her kindred on her death passed under the Mayukha to her sons and daughters in equal shares.

In arriving at my conclusion as to the meaning of Anva-dheya I have not overlooked the argument that the property was Saudayika but that term does not appear to me to be in any way used in contradistinction to Anvadheya in connection with the succession to stridhan.

Having then held that Anvadheya includes what is derived from the womans parents, I next have to consider the argu­ment of the defendants that the house was not the technical stridhan of Nathoobai. The line of reasoning was shortly this: the only kind of technical stridhan it could have been was Anvadheya- and that character it could not have borne inas­much as a gift by will was unknown when Nilkantha wrote. Pushed to its logical conclusion this argument would require me to hold that the property was not stridhan at all, and that he defendants did not venture to suggest.

Apart from the decision of Mr. Justice Green that property aired by will is technical stridhan I am not aware of any may decision bearing on the point, with which I am now

concerned, but I find that in Bengal as far back as 1816, it was the opinion of the Pandits, that if a legacy be given to a married woman by the relations of her husband or her own relations, it is stridhan, and the husband has no right to it- but if it be given to her by a stranger she cannot part with her interest in it without her husbands consent.

The Court to whom this opinion was given was apparently prepared to act upon it (Ramdulal Sircar v. Sree Mutty Jugmoney Debi (3). Though this was an opinion based on the Dayabhaga, its pertinence to the point is obvious when the rules of that treatise in reference to the Saudayika stridkan of a woman are borne in mind.

The result then is that in my opinion the house was the Anwdheyaka stridhan of Nathoobai, and on her death descended in equal shares to her son Ramkrishna and her two daughters the plaintiffs.

I now come to the plea of estoppel. In reference to the circumstances of this case the scope of this plea is to be found in section 115 of the Evidence Act, where it is provided that:

" when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act on such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such other person or his representative to deny the truth of that thing."

It is in the light of this declaration of the law, that 1 propose now to examine the facts of this case in relation to both the plaintiffs. The onus of establishing the bar clearly lies on the defendants, and so far as Narmadabai is concerned they have wholly failed in this respect. The 2nd defendant states that the day before the sale he saw the two plaintiffs, and that they both requested him to buy the house. If this really occurred it is a most remarkable circumstance that there Is no hint of it in the correspondence, the written statement, nor even in the instructions which have been produced. With­out elaborating this point further I can only say that the 2nd defendants statement on this point has wholly failed to cat conviction to my mind. No doubt Narmadabai admits have known of the sale shortly after it occurred but assuming that she knew of it before completion I cannot find in the established facts sufficient support for the application against her of the doctrine of estoppel.

Sitabais case, however, demands a much closer investiga­tion. Her evidence on this point might have been of the greatest value, but I am bound to state it appeared to me to be given with but little regard for her obligation to tell the truth: I have come to this conclusion with regret- for one (3) 2 Motleys Digest of Indian Cases p, 66 might have expected from a lady in her position some desire to give an honest version of the facts.

Now I am convinced on the evidence that this lady knew of the mortgages and of the former threatened sale. I am equally clear that she was well aware of the proposed sale which was ultimately carried into effect, and at which the defendants became the purchasers of the house in dispute. Moreover, I am satisfied that on the day of the sale, after it had actually taken place, there was. The meeting to which Bhaskerao Balkrishna Pitale deposed that in the defendants presence she expressed satisfaction that they had purchased the property, and it is established to my mind beyond doubt, that Sitabai subsequently through Bhaskerao approached the defendants with a view to securing to herself the right to redeem the property. All these facts are proved by the evidence of Bhaskerao, who appeared to me to be a most satis­factory witness, with no motive and no desire, as far as I could see, to do aught but state to the Court precisely what, occurred. Sitabai has met this by simple denial to which she vowed (but unsuccessfully) to lend colour of probability by a tale of serious illness.

Taking these facts then as proved, do they bring the case within section 115 of the Evidence Act? If I am to believe Sitabai then at the time when she acted in the way I have described, she believed the house belonged to her and her sister exclusively and that Ramkrishua had no interest in it. In that case it is obvious she behaved with flagrant dishonesty and no doubt as to the estoppel could arise.

I assent, however, to what was urged by Mr. Inverarity hat despite this ladys own statements my duty is to find as possible where the truth lies, and the conclusion to which have come is that Sitabai did not act with the dishonesty I mid have to attribute to her if I believed her, but that she spoken falsely in this Court. I do not believe the lady ever agined that she and her sister were entitled to the exclusion Ramkrishna- on the contrary it seems to me probable that even if she supposed she had any interest, still it was her impression that it was of so ambulatory a character as to be of no avail against any disposition by her brother. But does this misapprehension as to her rights better her own case?

While considering the circumstances under which the owner of a legal right will be precluded by his acquiescence from asserting it, Mr. Justice Fry (as he then was) no doubt laid it down as an essential condition that the possessor of the legal right must know of the existence of his own right, which is inconsistent with the right claimed by the plaintiff. If he does not know it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded on conduct of your legal rights. .(Wilmott v. Bubber (4) He later expressed his adherence to this view when sitting as a Lord Justice in Russell v. Watts (5). But in view of the expression of opinion by the Privy Council in Sarat chunder Bey v. Gopal Chunder Laha (6) it is impossible to urge any such proposition here. Their Lordships at page 214 of that report deal at length with this point and the effect of what is there enunciated appears to be correctly summarised in the following passages of the head notes :

Section 115 of the Indian Evidence Act, 1872, does not enact as law in India anything different from the law of England on the subject of estoppel.

.It is quite unnecessary in order to create estoppel that the person whose acts or declarations induced another to act must have been under no mistake himself, or must have acted with an intention to mislead or deceive. Estoppel mainly results from the fact that another has been induced, in reliance upon personal representations, acts, or omissions, to act as he otherwise would not have acted. "

Therefore, though I give Sitabai the benefit of not believing her evidence, it does not assist her.

The reasonable and natural result of Sitabais conduct in relation to this transaction was to induce the defendants to believe that she consented to the sale and had no adverse interest which would imperil its validity and to act on than belief, and it therefore seems to me that it must be attribute to Sitabai that she intentionally caused or permitted defendants to entertain that belief and act upon it and they did so act. It is true that if the defendants had made careful investigation of the title and had sought compete legal advice they might have learnt the true state of the title But Sitabai cannot rely on this it is a feature common every mistake of title. The doctrine of estoppel implies a mistake, and, apart from disentitling circumstances with which we have here no concern) the Court has only to be satisfied that the mistake was made: it does not go on to see whether it could have been avoided.

These considerations lead me to the conclusion that Sitabai is now estopped from advancing her claim.

Narmadabais claim, therefore, alone remains and I next will consider whether this claim has been extinguished by adverse possession. Now it is essential in approaching this branch of the Subject to bear in mind that the title of the plaintiffs did not arise until the death of Nathoobai, on the 7th of July 1884, and that then they became jointly entitled with their brother.

That Ramkrishna has throughout been in possession is beyond doubt, but that in itself does not go for much as it is referrable to a legal title: what has to be seen is whether his possession was adverse to Narmadabai, or, in other words, whether she was excluded.

Now what are the facts which are said to justify the inference of an exclusive possession in Ramkrishna? First it is said he collected the rents- but then as the sole male sharer this is only what one would expect, and in fact it appears that even in his mothers life-time the rents were received by him. The evidence as to how the rents were dealt with is meagre and unsatisfactory: the only direct evidence on the point is that of the plaintiffs and Shivshanker Anandrav and though these witnesses have overstated in their own favour what was done I do not think Ramkrishna ever claimed to withhold or appropriate to his own purposes the whole of the rents without regard to the claims of his sisters.

Then again it is said that Ramkrishnas application to the Collector evinces an intention to treat the house as his individual property.

It is true Ramkrishna applied for transfer of the house into his own name alone, and had he not been jointly interested with his sisters this would have been a fact of some weight. It is he simply did what he was entitled to do, and what it was but reasonable he should do, seeing that his co-owners were his sisters. Nor do I think the description of the property as the ancestral property of his late mother adds anything: it was an accurate description of the position. The application to the Chief Presidency Magistrate is open to the same comment.

But apart from this it does not appear that either of these documents came to the knowledge of Narmadabai.

And now I come to the positive evidence of possession by Narmadabai.

She was married to Shivshankar Anandrao in Jugunnath Shankershetts life-time, and from Jugunnaths death until a comparatively recent date they lived in this house. The defendants say-and I will assume correctly-that this date was 1887. Then they left and went to live in a house in Vithalwady belonging to Shivshankars father. If this was the commencement of an adverse possession by Ramkrishna then Narmadabais interest would be extinguished. To meet this Narmadabai maintains she never was excluded and alleges that even after she ceased to reside in the house, she still retained a room there, in which she kept articles belonging to-her and that she now and again stayed there. Mr. Scott has urged that the evidence of the witnesses on this point is conflict­ing and that it would be unsafe to act on it but on a consideration of the whole of the evidence I find as a fact that Narmadabai did retain possession of a room and that the room latterly in her possession was on the 2nd floor. Further I am satisfied that she did from time to time stay in the house- this appears not only from the evidence called on behalf of the plaintiffs, but also from the testimony of Balaram Pandurang, one of the defendants witnesses, who deposes to the fact that on the occasion of a thread ceremony she stayed for eight days in the house. I feel that the materials on "which I have to base a finding are meagre, but such as they are they lead me to the conclusion that Ramakrishna did not hold adversely to Narmadabai and as a result there has been no extinguishment of her interest.

This disposes of all the substantial questions in the case for there is nothing to support the pleas indicated in the 1st 3rd and 4th issues or in the leading proposition in the 5th issue except so far as it involves the facts which give rise to the plea of estoppel as against Sitabai.

My finding, therefore, on 1st, 3rd, 4th and 6th issues is in the negative,

On the 2nd issue I hold that the property descended on Ramkrishna and the plaintiffs in equal shares and on the 5th issue that (except so far as Sitabai is estopped from now claim­ing an interest in the property) Ramkrishna was not with the plaintiffs consent allowed to appear as the owner of the house and land.

On the 7th issue my finding is that Sitabai is, but Nar-madabai is not, estopped from denying the validity of the sale. The 8th issue does not arise. It follows then that the only declaration I can make is that Narmadabai is entitled to an equal third share in house in suit.