Mookerjee, A.C.J:— This is an appeal by the plaintiff from the judgment of Mr. Justice Greaves in a suit for specific performance of a contract of sale executed by the defendant on the 7th May, 1908, and confirmed on the 28th November, 1909. The subject-matter of the agreement is a share of the estate left by one Gopal Lal Seal, the maternal uncle of the defendant. Gopal Lal Seal died intestate on the 25th May, 1902, leaving him surviving two widows Kumudini and Nayan Manjari and five nephews (sons of sisters) Jogendra, Kanta Mohan, Giri Mohan, Gour Mohan ancl Panchanan. After the death of Gopal Lal Seal, a will was set up which this Court pronounced to be a forgery on the 3rd August, 1902; this decision was upheld on appeal by the Judicial Committee on the 18th March, 1909. The position consequently was that the estate left by Gopal Lal Seal vested in his two widows with right of survivorship inter se. On the death of both of them, the estate would pass to such of the nephews as might be alive when the succession would open out to them. During the pendency of the litigations mentioned, the defendant Gour Mohan, one of the nephews of Gopal Lal Seal, entered into an agreement with the plaintiff on the 7th May, 1908, which has led up to the present litigation. By this instrument, the defendant agreed to convey to the plaintiff for consideration mentioned, his interest in the estate of his maternal uncle, whether such interest was ultimately established on the basis of the will then in controversy, or, failing the will, on the basis of his position as a reversionary heir. It is to be observed that the extent of the share and the time of its accrual would be materially different in the two events contemplated. If the will was established, the defendant would take one-sixteenth of the estate with effect from the date of the death of the testator; if the will failed, the defendant would take a share the extent whereof would be ascertained, only upon the death of both the widows; if the defendant died before that date, nothing would vest in him; if he survived both of his maternal aunts, his share would be one-fifth, two-fifths, three-fifths, four-fifths or the whole, according as four, three, two, one or none of his cousins survived him; such was in essence the nature of the agreement now under consideration. After the final determination by the Judicial Committee of the question of the genuineness of the alleged will, the defendant executed a supplementary agreement in favour of the plaintiff on the 28th November, 1909. This document recited the failure of the appeal to the Judicial Committee and provided that the defendant would convey his interest in the estate of his maternal uncle, whensoever or howsoever it might vest in him, by the death of his maternal aunts, by relinquishment on their part, or by voluntary transfer by them. After this agreement, nothing happened for several years, till circumstances were altered by the death of Kumudini on the 21st November, 1917. The entire estate thereupon passed into the possession of her co-wife Nayan Manjari, who had, however, been meanwhile declared a lunatic. Thereupon, on the 28th November 1917, the defendant Gour Mohan and his brother Giri Mohan instituted a suit against her for declaration that in the events which had happened, the nephews of Gopal Lal Seal had become entitled to be placed in immediate possession of the estate with all additions and accretions thereto. The suit was compromised on the 28th March, 1918, whereby the nephews of Gopal Lal Seal took the moiety share held by Kumudini, while Nayan Manjari took the other moiety. The result, consequently, was that the defendant obtained one-fifth of a half share of the estate of Gopal Lal Seal by virtue of this consent decree. The plaintiff thereupon instituted the present suit on the 25th November, 1918, for enforcement of the agreement for sale made by the defendant on the 7th May, 1908, and confirmed on the 28th November, 1909. The defendant resisted the claim for specific performance of the contract on the ground, amongst others, that it was void, illegal and unenforceable as the subject-matter was an expectancy. Mr. Justice Greaves has given effect to this objection and has dismissed the suit with costs. The plaintiff has appealed against this decree of dismissal and has contended that the agreement in suit should have been specifically enforced.

The true position of a Hindu reversioner with reference to the estate of the last full owner, so long as it is vested in a female heiress who takes a qualified interest therein, has formed the subject of consideration by the Judicial Committee on more than one occasion during the last quarter of a century. In Sham Sundar v. Achhan Kunwar , Lord Davey stated that such a reversioner could not by Hindu Law make a disposition of or “bind his expectant interest” or his “future rights.” This pronouncement was treated by Maclean, C.J, and Banerjee, J., in Nandkishore v. Kanee Ram , as an authority for the proposition that the interest of a Hindu reversioner expectant upon the death of a Hindu female could not be validly mortgaged by the reversioner, and that consequently the contrary opinion expressed in Brahmadeo v. Harjan (3), must be treated as overruled. The same view was reiterated by Lord Davey in Bahadur Singh v. Mohar Singh (4). Again, in Venkatanarayana v. Subbammal (5), Mr. Ameer Ali observed that under the Hindu Law, though the death of the female owner opens the inheritance to the reversioners and the one most nearly related at the time to the last full, owner becomes entitled to possession, in her lifetime the reversionary right is a mere possibility or spes successionis. In Janaki v. Narayansami (6), Lord-Shaw described the nature of the widow's estate and the situation of the reversionary heirs. Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but so long as she is alive, 110 one has any vested interest in the succession. The law as to the situation of the reversionary heirs is also in substance quite clear. There is no vesting as at the date of the husband's death and the questions of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives. But “a reversionary heir, although having only those contingent interests which are differentiated little, if at all, from a spes successionis is recognised by Courts of Law as having a right to demand that the estate be kept free from waste and free from danger during its enjoyment by the widow or other owner for life”, in other words, to appeal to the Court in a representative capacity, truly for the conservation and just administration of the property, so that the corpus of the estate may pass uninrpaired to those entitled to the reversion. On this principle it has been maintained that although a reversioner under the Hindu Law has no present alienable interest in the property left by the deceased, he is substantially interested in the protection or devolution of the estate and as such is entitled to appear and be heard in a probate proceeding: Brindaban v. Sureswar . Similarly, in Amrita Narayan v. Gaya Singh , Ameer Ali, J. observed that a Hindu reversioner has no right or interest in presenti in the property which the female owner holds for her life, until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs; his right becomes concrete only on her demise; until then, it is mere spes successionis. We must accordingly take it as settled by the decisions of the Judicial Committee that the interest of a Hindu reversioner is an interest expectant on the death of a qualified owner; it is not a vested interest, it is a spes successionis or a mere chance of succession, it cannot be sold, mortgaged, assigned or relinquished, for a transfer of a spes successionis is a nullity and has no effect in law. But though a transfer of his interest by a reversioner is void, he may, by becoming a party to a compromise and by taking the benefit of the compromise, be estopped from claiming as a reversioner: Kanhai Lal v. Brij Lal , Khuni Lal v. Gobind Krishna , Hiran Bibi v. Sohan Bibi . Upendra v. Bindesri . We are not concerned here, however, with the question of the legal effect of a compromise in the nature of a family settlement, entered into by a Hindu widow or other limited heir with the presumptive reversioner and its operative character either against the presumptive reversioner who is a party to the transaction or against the person who by the development of events, becomes the actual reversioner. There can, in our opinion, be no doubt that according to the decisions of the Judicial Committee, so long as the estate is vested in the female heiress, the interest of the reversioner is a mere chance of succession which cannot form the subject of any contract, surrender or disposal. This view is now generally accepted in nearly all the Indian High Courts: Nund Kishore v. Kanee Ram , Ram Chandar v. Kallu , Jagannath v. Dibbo (7), Bhana v. Guman Singh (8), Manickam v. Ramalinga (9), Pindiprolu v. Pindiprolu (10), Dhoorjeli v. Dhoorjeti , Muthuveeru v. Vythilinga , Narasimham v. Madhava , Subbaraya v. Muthayammal . In some of these cases, for instance, in Nund Kishore v. Kanee Ram , Narasimham v. Madhava , Manickam v. Ramalinga , Ramasmi v. Ramasami , Pindiprolu v. Pindiprolu , reference is expressly made to the provisions of section 6 of the Transfer of Property Act, which lays down that “the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.” No useful purpose is therefore likely to be served by an analysis of judicial decisions which were pronounced before section 6 of the Transfer of Property Act was enacted or before the Judicial Committee made a pronouncement on the subject in Sham Sundar v. Achhan Kunwar . But it may be pointed (out that the trend of judicial opinion in this Court was undoubtedly not in favour of the contention that the interest of a Hindu reversioner could form the subject of actual alienation, voluntary or involuntary, or of valid agreement for transfer. We are not unmindful that in one of the earliest cases in this Court, Rychurn Paul v. Peary Monee , Raikes and Sumbhoonauth Pundit, JJ. held that there was nothing so peculiar in the position of a Hindu reversioner that he should be excluded from disposing of his contingent interest if he pleased, and that consequently the assignee of the reversionary contingent interest was entitled to restrain the widow from committing waste. The contrary rule, however, was enunciated, in the case of involuntary sales, by Campbell and Macpherson, JJ. in Koraj v. Komul which was followed by Norman, J. on the Original Side of this Court in Bhoobun Mohun v. Thakoordass . The same view had been taken in Pranputtee v. Futteh Bahadoor which, however, was not followed in Gaur Hari v. Radhu Govind . The result of this conflict of opinion was that the question was referred by Phear and Dwarkanath Mitter, JJ. to a Full Bench in Ram Chandra v. Dharma Sarayan The Full Bench ruled chat the interest of a reversionary heir, according to Hindu Law, expectant on the death of a widow in possession, is not property; it is a mere expectancy and is not rendered liable to attachment and sale in execution of a decree as the “right, title and interest of a judgment-debtor.” But Phear, J., in the course of the observations he made in the Order of Reference, appears to have thought that although the interest was nothing more than an expectation, if the so-called heir voluntarily sold his reversionary right, on his succeeding to the property, if he did so, a Court of equity might compel him to fulfil his contract. The Full Bench, however did not commit itself to this proposition, which cannot now be maintained in view of the circumstance that the Legislature has, by section 6 of the Transfer of Property Act, made inalienable a mere possibility of succession to an estate.

The Transfer of Property Act does not define the term “property,” but let it be assumed that the mere possibility of succeeding to an estate might have been regarded as property within the meaning of the provision, in section 6, that “property of any kind may be transferred” and that consequently the Legislature thought it necessary to make inalienable by express enactment, “the chance of an heir-apparent “succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature,” that is, possibility of a nature akin to the two chances expressly mentioned. There can, in our opinion, be no doubt that the possibility of a Hindu reversioner succeeding to the estate of the last full owner, on the termination of the estate of the intermediate female heiress or heiresses, falls within clause (a) of section 6. There is no escape from this position, and, indeed, it is on this basis that the argument has been advanced that we should apply to the present case the principles of equity which may be invoked by a transferee of non-existent future property. Reliance has, in this connection, been placed upon the decisions in Holroyd v. Marshall and Tailby v. Official Receiver . Reference has also been made to the principle in Walsh v. Lonsdale and to the doctrine of estoppel embodied in section 43 of the Transfer of Property Act. We are of opinion that none of the principles which have been invoked by the appellant can be of any possible assistance to him. The principle in Walsh v. Lonsdale has been applied in a long series of decisions in this Court, which will be found reviewed in Syam Kisor v. Dines , to reach the result that when in pursuance of an agreement to transfer property, the intended transferee has taken possession, though the requisite legal documents had not been executed and registered, the position is the same as if the documents had been executed, provided specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined. The result attained in this class of cases was reached by the Judicial Committee in Mahomed Musa v. Aghore Kumar by the application of the doctrine of part performance enunciated in Maddison v. Alderson . But, plainly neither of these principles can assist the appellant, as they are ultimately based on the maxim that “equity regards that as done which should have been done.” There is manifestly a fundamental difference between non-compliance with the formal requisites prescribed for a transaction whereby alienable property is transferred, and an attempt to accomplish a transfer of property which has been rendered inalienable by a statutory provision. The appellant is in a position of similar difficulty when he invokes the aid of the principle of law which is sometimes referred to as feeding the grant by estoppel. That doctrine, as recently stated by Lord Buckmaster in Tilakdhari v. Khedanlal , is that “if a man who has no title whatever to property, grants it by conveyance which in form could carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes; in such a case, there is nothing on which the second grant could operate in prejudice to the first.” This principle has sometimes been applied in our Courts [see, for instance, Bhairab Chandra v. Jiban Krishna ] to reach the result that though the assignment was of a defective title, yet as the assignor afterwards acquired a good title, the Court would make that good title available to make the assignment effectual. But this principle plainly has no application where the contract of assignment refers to property which has been expressly rendered inalienable by the Legislature. This view is supported by the decision in Doolichand v. Brij Bhookun , where the Judicial Committee, in a case decided before the Transfer of Property Act, declined to affirm the proposition that the interest of a Hindu reversioner could be made the subject of a sale, or, that in the event of an attempted sale, the conveyance could attract the operation of the principle of English Law which allows a subsequently acquired interest to feed the estoppel. The appellant is met by the same difficulty, when he invokes the aid of the principle which underlies the decisions in Holroyd v. Marshall and Tailby v. Official Receiver which have sometimes been applied by the Courts of this country on grounds which will be found investigated in Khobhari Singh v. Ram Prosad . Here also the appellant seeks the benefit of the principle that equity considers that done which ought to be done. The question whether the effect of section 6, clause (a) of the Transfer of Property Act is not merely to except, specially, the chance of an heir, apparent from the category of transferable property, but also, to make the principle that “equity considers that done which ought to be done” entirely inapplicable to attempted transfers in the cases mentioned, was raised but left undecided in the case of Rebati Mohan v. Ahmed Khan , where the proposition was affirmed, on the authority of the decision in Sumsuddin v. Abdul , that a Mahomedan cannot, any more than a Hindu, bind his chance as an heir-apparent. In the case last mentioned, however, Jenkins, C.J held that it was not intended by section 6, clause (a), to establish and perpetuate the distinction between what, according to the phraseology of English lawyers, is assignable in law and what is assignable in equity. We are of opinion that this conclusion is well founded on principle. Jenkins, C.J referred to the observation of Lord Hardwicke, in Chauncy v. Graydon , that “though in law a possibility is not assignable, yet in equity, where it is done for a valuable consideration, it has been held to be assignable and transmissible to the representative of the devisee,” and to the observation of Lord Eldon in Carleton v. Leighton “that the expectancy of an heir presumptive or apparent (the fee-simple being in the ancestor) was not an interest, or a possibility, nor was capable of being made the subject of assignment or contract.” It is not improbable, if speculation is permissible, that the Indian Legislature intended, by the provision in section 6 clause (a), to settle the question, whether “the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other mere possibility of a like nature,” should be governed by the general principle enunciated by Lord Hardwicke or should be subject to the special rule indicated by Lord Eldon. Section 6 makes property of any kind transferable, subject however to exceptions set out in the Act or provided by any other law for the time being in force. The exceptions included in clause (a) cannot be supposed to have been selected, merely by reason of the future character of the chances; if that had been the determining factor, all future property might as well have been declared inalienable. The truth is that an attempted conveyance of non-existent property, though it cannot operate as an immediate alienation, may, when made for consideration, be valid as a contract and when the object to which it refers comes into existence, equity taking as done that which ought to be done, fastens upon the property, and the contract to assign thus becomes a complete assignment. This was precisely the point of view of the Judicial Committee in Budhoo Singh v. Perhlad Sein where Sir James Colvile observed: “But how can there be any such transfer, actual or constructive, upon a contract under which the vendor sells that of which he has not possession, and to which he may never establish a title? The Bill of Sale in such a case can only be evidence of a contract to be performed in futuro and upon the happening of a contingency, of which the purchaser may claim a specific performance if he comes into Court showing that he has himself done all that he was bound to do.” The principle which is thus seen to underlie the rule in Holroyd v. Marshall and Tailby v. Official Receiver , makes it abundantly clear that an instrument which purports to be a transfer of a chance or possibility, mentioned in section 6, clause (a), can, as such, have no operation. Thus, where an instrument of mortgage was executed in the lifetime of a zemindar by a member of his family who at the time was next in succession, it was ruled in Ramasami v. Ramasami that a mortgage suit could not be instituted against him after his succession to the zemindari. To the same effect is the decision in Nund Kishore v. Kanee Ram that where during the lifetime of a Hindu widow a mortgage was executed by the reversionary heir, and subsequently after her death, another mortgage was executed by the same person, the holder of the first mortgage could not enforce it against the property in the hands of the second mortgagee. Further illustrations of the application of this principle may be found in. Laliteswar v. Rameswar , Hargawan v. Baijnath , Dhoorjeti v. Dhoorjeti , Pindiprolu v. Pindiprolu , Abdool v. Goolam . The contrary view implied in Gitabai v. Balaji , where the point does not appear to have been argued, cannot be supported. The decision in Ram Nirunjun v. Payag Singh , which was mentioned with approval in Nasirul Haq v. Faiyazul Rahman , is distinguishable. In that case a clause in a compromise deed was held to be not a conveyance of an expectant right, but an agreement between expectants to divide a particular property in a certain way on the happening of a particular contingency. The circumstances of the case, which was decided before the Transfer of Property Act, were held to attract the operation of the principle of equity that a fair agreement between expectants or their heirs to divide the property which might be left between them or to any one of them was not contrary to public policy and would be enforced in equity. That case may consequently be deemed to belong, not to the class now before us, but rather to the type of which the decisions of the Judicial Committee in Kanhai Lal v. Brij Lal , Khuni Lal v. Govind Krishna , and Hiran Bibi v. Sohan Bibi (11) furnish examples. It is thus abundantly clear that whatever be the path selected by the appellant for escape, he is enmeshed in the same difficulty, for he has always to invoke the aid of principles of equity to enable him to defeat the application of a statutory provision, framed by the Legislature on grounds of public policy, with a view to render inalienable certain categories of property. No Court of equity will assist him in his endeavour to accomplish this purpose.

In the view we take, it is not necessary to examine the phraseology of a definition of the term “property” based in a large measure on the analysis given in Fearne on Contingent Remainders, Vol. II, p. 16, with ingenious modifications by Mr. Bose who argued this appeal on behalf of the appellant with much learning and industry, though he obviously found himself unable to breast the tide of authority.

“‘Property’ includes any estate or interest in the goods, chattels or real or personal estate of a person of any kind whatsoever, whether in presenti or in futuro, and whether in possession or in reversion or in remainder or in expectancy, for which the claimant can ask for and seek relief in a Court of Law, and which right or interest the Court protects or in regard to which Courts grant relief in a suit for possession or recovery or for perpetuation of testimony or waste or appointment of a receiver or injunction or any other relief.”

It is sufficient to say that even if this definition were accepted, the question would still remain, whether the interest of a Hindu reversioner is “property” within its meaning. Let it be assumed, as was done in the case of Jagannada v. Prasad Rao that a mere chance of succeeding to an estate was a bare possibility incapable of assignment, Jones v. Roe , In re Parsons , and that it was nevertheless held in England that in the case of such expectancies, equity would enforce a contract to convey the estate when it fell in; Fearne on Contingent Remainders, Vol. I, pp. 549 — 551; Wiseman v. Roper , Hobson v. Trevor , Wethered v. Wethered and Lyde v. Mynn , notwithstanding the observation of Lord Eldon in Carleton v. Leighton and Harwood v. Tooke , it does not follow that the same course can be legitimately adopted here, in the face of section 6, clause (a) of the Transfer of Property Act. No useful purpose is thus likely to be served, if we were to undertake an elaborate examination of the distinctions between possibilities coupled with an interest, such as contingent remainders, executory devises, springing or shifting uses, on the one hand, and a bare or naked possibility, such as the hope of inheritance entertained by the heir, on the other hand. The former class, it has been said, may with propriety be denominated contingent interests, the latter mere expectancies, in as much as a possibility coupled with an interest is more than a possibility and is a present devisable interest [Perry v. Philips ], while the expectancy of an heir-apparent during the lifetime of his ancestor, is less than a possibility, being but a mere hope or anticipation. But it appears to be the indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next-of-kin of such living person, during the life of such person, no one can have more than a spes successionis, an expectation or hope of succeeding to his property; nemo est haeres viventis; there is no such character in law as the heir of a living person or as his statutory next of kin; this doctrine is not peculiar to English Juristprudence, and as we shall presently see, was recognised by Hindu Jurists of the Bengal School: Lord Dursley v. Fitz Hardinge , Hinde v. Blake , Meek v. Kettlewell , Davis v. Angel , In re Ellenborough , In re Simpson , In re Green , In re Mudge .

Finally, reference has been made to section 2 of the Transfer of Property Act which provides that nothing in the Second Chapter (which includes section 6) shall be deemed to affect any rule of Hindu, Mahomedan or Buddhist law. Consequently, it has been suggested that the appellant may conceivably succeed, notwithstanding section 6 of the Transfer Property of Act, if it transpires that under the Hindu law the interest of a reversionary heir is alienable or may form the subject-matter of a valid contract for assignment. No authority, however, has been produced from the original texts, which may lend even a semblance of support to such a theory; on the other hand, whatever indications are available, militate against the view. The interest of a reversioner, as we have seen, does not constitute a present or vested interest in the estate, which is completely represented by the female heiress, during her lifetime, although her power of alienation may be of a restricted character. The interest of the reversioner is neither devisable nor transmissible by inheritance; it lacks the fundamental characteristic of the juristic concept of ownership as understood by Hindu lawgivers. Srikrishna Tarkalankar, in his commentary on the Dayabhaga, states that, according to the old established explanation, fitness for free disposal is essential to constitute property. This, it may be observed, did not stand in the way of the recognition of the existence of various concurrent rights to one and the same thing vested in different persons, provided that there was no incompatibility in the co-existence of such rights. But, if fitness for free disposal is essential to constitute ownership, the question at once arises, what is the mode of such transfer of ownership. Now, the earliest method of transfer known to Hindu jurists was gift, which was defined as the renunciation of property in favour of a sentient being, having the result of extinguishing the ownership of the donor and creating ownership in the donee. The subject-matter of the gift, consequently, must be of such a nature that the donor might renounce his title therein to the donee, according to prescribed formalities. These formalities included delivery on the part of the donor and acceptance on the part of the donee; the substance of the matter thus is, that transfer of ownership and delivery of possession go hand in hand. The transfer of ownership is the result of the manifestation of intention on the part of the transferor to part with the ownership in presenti in favour of another, who thereupon accepts the situation, agrees to become the owner and does become the owner by the combined effect of renunciation on the one hand and appropriation on the other. It is not necessary to investigate whether an actual delivery of possession is necessary to perfect the transfer of ownership or whether the transfer may not be accomplished without actual delivery by the co-ordinated desire of the transferor and transferee; but what is essential is that the subject-matter of the gift should be property capable of delivery. In course of time, the rules applicable to gifts were extended to the case of sales and other kinds of transfer. The Hindu jurists do not appear to have ever contemplated the transfer of mere chance, or possibility of succession, which, as is abundantly clear from numerous passages of the Dayabhaga, was not property (Dayabhaga, chap. 1, paras. 13, 11, 15, 18, 19, 26, 30, 38, 39, and 42). These passages show that the expectant interest of a son, in other words, what has been called, not very felicitiously, “the inchoate right of inheritance created by birth” is not property; while the father lives, no property is vested in the sons, and they have no ownership which could form the subject of partition which is in essence a form of alienation. There is thus no ground to hold that the claim of the plaintiff, tested by Hindu law, apart from the provisions of s. 6 of the Transfer of Property Act, can be seriously entertained.

The result is that the decree made by Mr. Justice Greaves is affirmed and this appeal dismissed with costs.

Fletcher, J.:— I agree.

N.G

Appeal dismissed.

Attorneys for the appellant: Mitter & Boral.

Attorney for the respondent: K.K Dutt.