1. The facts are complicated and as the Munsif has set them out clearly in his judgment, I do not propose to state them again. The 1st defendant was the owner of the property in dispute. On the 1st of August 1919, she executed a sale deed in favour of the 2nd defendant (Ex. II) On the 10th September 1919, she executed a sale deed in favour of the plaintiff.(Ex. C). The contest is now between the plaintiff and the 2nd defendant. The question is shortly: Whose sale deed is to prevail?
2. The conveyance in favour of the 2nd defendant being earlier in date would in the ordinary course take precedence. On behalf of the plaintiff it is urged that the conduct of the 2nd defendant created an estoppel and that he is precluded from relying upon his sale deed. The 2nd defendant treated the sale in his favour as cancelled, but under Section 92 of the Indian Evidence Act the subsequent agreement rescinding the sale cannot be proved. The question then is: Did the 2nd defendant by any representation or by conduct amounting to representation induce the plaintiff to purchase the property parting with valuable consideration? The effect of the finding of the Courts below is that the conduct of the 2nd defendant was of an unequivocal character and that the plaintiff was thereby misled. This is a question of fact and the finding must be accepted in second appeal. Even apart from this, I am satisfied that the finding is correct. It is unnecessary to narrate the circumstances which give rise to the plea of estoppel. The outstanding facts that are relied upon by the plaintiff in this connexion are, that the 1st defendant ??? the concurrence of the 2nd defendant ??? on the ??? of September to sell ??? property to the 7th defendant; that an agreement of sale was accordingly executed and that the 2nd defendant giving up his rights under his own conveyance, attested the agreement to sell. The and defendant thus held out that the sale in his own favour was inoperative, that the 1st defendant still continued to be the owner of the property; that she had authority to dispose of it and that the 2nd, defendant was willing that the property should be dealt with as if, it was at the absolute disposal of the 1st defendant. In short the 2nd defendant's conduct amounted to a representation that although he took a conveyance, the 1st defendant remained the owner of the property. The Courts below have also held, disbelieving the plaintiff himself on this point, that he was induced to purchase the property by this conduct on the part of the and defendant. I agree with its conclusion: Can the 2nd defendant now turn round and say that he was on the date of the sale to the plaintiff, the owner of the property? I think not. In Sarat Chaunder Dev v. Gopal Chounder Doha(1) their Lordships of the Judicial Committee made the following observations:
“What the Law and the Indian statute mainly regard is the position of the person who was induced to act and the principle on which the law and the statute rest is that it would be most inequitable and unjust to him that if another by a representation made, or by conduct, amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it.”
3. Their Lordships quote the following passage from the judgment of Lord Chanceller Campbell in the case of Cairncross v. Corrimer(2).
“The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations, that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.”
4. Their Lordships also held that, the terms of Section 115 of the Indian Evidence Act did not enact as law in India anything different from the law of England on the subject of estoppel. I am clearly of the opinion that the 2nd defendant cannot be allowed to deny that the 1st defendant was the owner of the property and was competent to dispose of it. I may observe that we are not concerned with the 7th defendant who does not put forward any claim.
5. For the appellant it was strenuously argued that to give effect to the doctrine of estoppel would be tantamount to abrogating Section 92 of the Indian Evidence Act. I cannot follow this argument. I am not asked to admit evidence of any subsequent agreement to rescind the original sale. Under S. 92 the existence of such agreement cannot be proved. The question would arise in this way under that section. If the 2nd defendant proves by the production of the sale deed that he is the owner of the property, no evidence can be given of a subsequent oral agreement on his part to rescind the sale. But, in the present case the plaintiff does not rely upon any subsequent agreement. What he says in effect is, the and defendant's conduct amounted to a certain representation and he acted upon it. Did he or did he not make that representation? That is the point to be decided. If he did make the representation and the plaintiff was misled by it and acted upon it, estoppel can be successfully pleaded. The Court is not called on to look at the conveyance in favour of the 2nd defendant at all it is not in the least degree concerned with it. Neither is it necessary to look at the sale deed nor to admit evidence of an agreement to rescind the sale. In fact the issue which the Court will have to decide is whether or not a representation was made. Considerations pertaining to the sale deed are extraneous to this issue. Until the question of estoppel is decided against the plaintiff, there will arise no occasion to consider the applicability of Section 92 of the Indian Evidence Act. I find absolutely no conflict between Ss. 92 and 115. The case in Pitchammal v. Ponnambala Bhattar(3), cited by appellant's learned vakil; is distinguishable and the observations relied on are obiter. There is another way of looking at the question. When a party seeks to give evidence of a subsequent oral agreement modifying the terms of the written grant, he puts forward that agreement a true and relies upon the truth of that agreement. In the case of an estoppel, the party who pleads it does not profess to show that the representation made is true. On the contrary his case, very probably, is that the representation is false but that the person who made it should not be allowed to show that it is false. Sections 92 and 115 deal with two entirely different topics and I am unable to discover any conflict between the two.
6. In dealing with the question whether a transaction amounted to a sale or a mortgage, Melvill, J. in the course of his judgment in Baksu Lakshman v. Govinda Kanji(4) observed thus:
“If the holder of an absolute bill, of sale were not only to allow the vendor to remain in possession, but were to take interest from him on the alleged purchase money, or allow him to go on improving the property, conceive that any Court would hold that the so called vendee was stopped from endorsing his bill of sale. The answer to him would be, not that his conduct was evidence of an oral agreement converting the sale into a mortgage, but that, whether there had been such an agreement or not, he had by his conduct led the defendant to believe that he would treat the transaction as a mortgage, and that, on the strength of such belief, the defendant had been induced to pay money which he would not otherwise have paid, and that under such circumstances the plaintiff was estopped from denying that the original transaction was one of mortgage. In such a case it is clear that evidence of conduct would be strictly admissible under Section 115 of the Evidence Act.”
7. It has been suggested by the appellant's vakil that the view of Melvill, J. was overruled in Maung Kyin v. Ma Shee(5) and that therefore the passage extracted above from his judgment cannot be taken as stating the law on the point expressly decided by Melvill, J., I cannot agree that the particular passage referred to above does not correctly state the rule of estoppel.
8. I am clearly, therefore, of the opinion that the plaintiff must succeed on the question of estoppel.
9. The case may be considered from still another point of view. The 2nd defendant's conveyance was executed on the 1st of August 919 but was not immediately registered. Misled by the conduct of the 2nd defendant (conduct to which I have already referred) the plaintiff him self took a sale deed on the 10th September and got it registered on the 11th. The 2nd defendant, ignoring what had happened and with the fraudulent object of enforcing the sale in his own favour, then presented his conveyance for registration on the 13th of September and got it registered on the 10th of October. The effect of registration is to confer validity on the document from the date of its execution. Is the 2nd defendant then to be allowed to rely upon his own fraudulent conduct to give his conveyance preference over the sale deed of the plaintiff executed later but registered earlier? For this reason also the plaintiff is entitled to succeed.
10. There is just a minor point which has been raised by the appellants and in relates to the discussion of Issue III in the Munsif's judgment. The 2nd defendant admittedly paid Rs. 350 and he will be entitled to that sum, Rs. 350 will be accordingly substituted for Rs. 217-3-7. The judgment of the lower appellate Court will be modified to that extent. The second appeal in other respects fails, and subject to the modification above, is dismissed with costs. This second Appeal having been posted again to be spoken to. There is no objection to the second appeal being dismissed without any reservation of the nature contained in the last paragraph of my judgment.
11. The second appeal is therefore dismissed with costs.
12. Appeal dismissed.