Annada Mohan Roy v. Gour Mohan Mullick And Others

Lord Sumner:-

Three points have been argued on these appeals, one by Mr. De Gruyther, the lead ing counsel for the appellant, and two others by Dr. Abdul Majid, the junior counsel.

The plaintiff, the present appel lant, had agreements with three persons, who are the respondents, only two of whom, however, appear by Counsel, under which he pur ported with great elaboration to purchase from them their expecta tions under the will of their uncle, or alternatively their rights as his nephews expectant upon the termi nation of the surviving widows' rights in the property of the uncle, and among many other purposes, which are recited in this agree ment, for which advances are agreed to be made, one, and ap parently the principal one, was that an appeal might be prosecuted ultimately to His Majesty in Council for the purpose of establish ing a will which the deceased was said to have made.

Unfortunately their Lordships, affirming the decision in the Court below, found that that will was a forgery. That therefore reduced the expectations of the three res pondents to their interest in the property after the widows' rights should come to an end, and as a matter of fact after a time one widow died and a compromise was entered into with the approbation of the Court in respect of the rights of the other widow, the effect of which was to accelerate the time when the nephews became entitled to the inheritance.

In the present suits in India the trial Judge stated ten issues. The first four of those issues were argued and dealt with by him. The point in substance upon which those four issues turned was whether or not the agreements were illegal or void on the ground that they dealt with an expectancy.

There were a number of others - as a matter of fact, eleven in all - but the remaining seven were not dealt with by the learned Judge. An application was made to him that he should pronounce a decree giving effect to his deter mination of the first four issues, which he declined to do upon the ground that there remained some issues in the case which had not been dealt with, one of them, for example, being an issue whether the plaintiff was entitled to a re fund of the amounts which he had in fact paid or any of them, and another whether his rights were barred by limitation.

The present appellant was ad vised that his best course was to ob tain an immediate decree upon the four issues, which had been dealt with and appeared at that time to be the only substantial ones, in order that he might prosecute his appeal to the High Court, and ulti mately to His Majesty in Council, and he therefore elected to abandon all the other issues, whatever they might be in fact, he never called any evidence in support of them, and a formal order was made upon his petition disposing of , them all in that way. We are told, and very likely it may be so, that at that time the advice was largely influenced by the conside ration that it was still thought to be an open question before their Lord ships whether, apart from the Transfer of Property Act, it might be held competent to these heirs, according to the ordinary Hindu law, to contract to transfer, and ultimately to transfer their expec tation, such as it was, and no doubt, if that was the real point of the litigation, it was worth while to abandon minor points in order to get that issue determined.

Between the time when the decree was asked for and obtained and the present time there has been a decision of their Lordships' Board in the case of Harnath Kuar v. Indar Bahadur Singh AIR 1922 PC 403: 45 All 179 : 50 IA 69 : 37 CLJ 346 : 44 MLJ 489 : 9 OLJ 652 (PC) and although, as it appears to their Lordships, it simply re-states what had frequently been stated before, the appellant now recognises that the last word has been said, so far as he is concerned, about the possi bility under Hindu law of such an interest being transferred.

Under these circumstances an application was made to their Lordships by Mr. De Gruyther to allow the petition which had been presented to the High Court to be recalled, and the decree that was made upon that petition to be set aside and so to allow in some shape or form discussion, if not proof, of the remaining issues in the case, the object being to show that there were, or might be circumstances in which it possibly could be held that the time of the discovery of the illegality of the contracts was not the time when the contracts were made and the parties knew the law or must be presumed to have known it, but at a later date (what date their Lordships are not exactly told).

It was urged that, if such circum stances could be suggested here, a view similar to that which the Board took in the case above mentioned might be taken in favour of the present appellant also. In that case, however, there were special circumstances, wholly different from those in the present case, circumstances which were proved in evidence and were suffi cient for their Lordships to act upon and to enable them to say that the discovery in the case was later than the date of the contract itself.

There has been no suggestion anywhere in the course of the present proceedings that any such facts occurred as could alter the view which must normally be taken of the meaning of the word " dis covery" and of the time at which that discovery must be held to have occurred. Not only so, but it was by the deliberate act of the appel lant himself, for considerations which at the time were very likely wise considerations, that he closed the door to any investigation of that issue at all.

Their Lordships are content to dispose of the first point by saying that the additional issues cannot be gone into now and that upon the face of the matter the appeal must be dealt with upon the question whether, either under the Transfer of Property Act or under the Hindu law applying to purchases of expectations of in heritances, there is any ground upon which these contracts can be supported.

Dr. Abdul Majid has developed these points, and his points appear to be two, setting aside for the moment the Transfer of Property Act, upon the ground that it deals with an actual transfer or convey ance and not with a contract to transfer. It is contended that there is nothing in the reason of the thing to prevent two parties, who are concerned in the way in which these parties were concerned, from entering into a contract for the future sale of future expectations.

It is admitted that there is no au thority to be found anywhere which supports the view that such a con tract is possible, and it is admitted that there is authority in India to the contrary, the authority in ques tion being the case of Sri Jaganna da Raju v. Sri Rajah Prasada Rao (1915) 39 Mad 554 : 28 MLJ 650 : 17 MLT 419 : 29 IC 241 : (1915) MWN 626 which so satisfied the learned Judge at the trial that he expressed his assent to the reasoning, without further discussion, and the High Court in its turn was satisfied also. The reasoning of that decision may well be summed up first in a quo tation from the judgment of Chief Justice Wallis, and secondly, in a quotation from that of his colleague, Mr. Justice Tyabji.

The learned Chief Justice says at page 558 [of 39 Mad.] :-

"On this question, looked at apart from authority, I should not entertain any doubt, as it seems futile to forbid such transfers or expectancies if con tracts to transfer them are to be en forced as soon as the estate fails into possession. In these circumstances it seems to me that it is our duty to give effect to what we consider plain provi sions of our statute law instead of following a course of English deci sions which would appear to have been based, from very first, on a regard for long established practice rather than on principle, and to have failed to commend themselves to Lord Eldon."

Then Mr. Justice Tyabji at page 559 [of 39 Mad.,] says :-

" The Transfer of Property Act does not permit a person having expecta tions of succeeding to an estate as an heir to transfer the expectant bene fits ; when such a transfer is purported to be made an attempt is in effect made by the two persons to change with each other their legal positions, and an attempt by the one to clothe the other with what the Legislature refuses to recognise as rights, but styles as a mere chance incapable of being transferred. It would be defeat ing the provisions of the Act to hold that though such hopes or expecta tions cannot be transferred in present or future, a person may bind himself to bring about, the same results, by giving to the agreement the form of a promise to transfer not the expecta tions but the fruits of the expectations, by saying that what he has purported to do may be described in different language from that which the Legis lature has chosen to apply to it for the purpose of condemning it. When the Legislature refuses the transaction as an attempt to transfer a chance, it indicates the true aspect in which it requires the transaction to be viewed."

Their Lordships think that they are only following out numerous other passages which have been referred to in earlier judgments of this Board when they accept that reasoning and that conclusion. It is impossible for them to admit the common sense of maintaining an enactment which would prevent the purpose of the contract, while permitting the contract to stand as a contract, or to see how by appealing to Section 65 of the Indian Contract Act, or to the nature of the bargain as a mere bargain de futuro, they could up hold it as a contract when it is a contract as to which, not only must specific performance be re fused under the Transfer of Pro perty Act, but as to which dama ges can never be recovered, be cause the contract is not a per formable contract until the rea lisation of the expectation occurs.

There is another way in which the learned counsel for the appel lant puts the point, namely, that there is here a contract wholly distinguishable from any contract as to spes successione, because, after carefully providing for all event ualities, the documents deal with the possibility of the, widows, or one of them, relinquishing their life interests either jointly or seve rally or selling them to the re versionary heirs, in which event from the date of the relinquish ment or sale, the heirs would become the present owners of the estate by right of inheritance.

It is suggested that this pro vision ought to be read as relating

to a transaction with strangers, embedded in the middle of a much longer contract with the parties to this appeal and relating to their hopes of inheritance; in other words, that it should be treated as though it read :

" Further, if we can obtain by purchase from total strangers to the family a portion of our late uncle's property, then we under take to sell it to you on the same terms as those upon which we have undertaken to sell our spes succes sione."

" It is not necessary to discuss how far such a contract might be supportable, because it is quite plain upon the documents that this is not such a contract, and therefore the point, ingenious though it is, is sufficiently dealt with by dismissing it.

The result, therefore, is that on all the points the appeals fail. As they have been conso lidated in India and before their Lordships there will be one set of costs only, and the two success ful respondents who appear by Counsel will get that set of costs, and their Lordships will humbly advise His Majesty accordingly.

Appeals dismissed.