The Judgment of the Court was delivered by
Sadasiva Aiyar, J.:— The plaintiffs are the appellants. They are two out of the three daughters of one Sambasiva Aiyar, who died in 1880. Defendant 1 is the daughter and heir of Subbammal, who is now dead and who was also a daughter of Sambasiva Aiyar like the two plaintiffs. The mother of the plaintiffs and of Subbammal died in 1899 having enjoyed a widow's estate in the properties. Shortly before her death however she executed a will treat in the properties as her absolute propertied and bequeathing the lands described in the plaint, B schedule, absolutely to her three daughters, namely the two plaintiffs and Subbammal. The daughters accordingly divided the B schedule properties into three equal shares by an oral division shortly after their mother's death purporting to take each one-third absolutely according to the will of their mother. Subbammal died in 1908 and her one-third share (the plaint schedule property) was taken possession of by her daughter (defendant 1) as her heir. Now, the two plaintiffs have brought the suit out of which this second appeal has arisen, on the allegation that the plaint schedule property was taken by their sister Subbammal as heir of their father Sambasiva Aiyar after the death of their mother in 1899 and that property which defendant 1 has so taken possession of belongs to them after the death of their sister Subbammal. (The plaintiffs in their plaint dishonestly suppressed the fact that Subbammal had been enjoying the plaint one-third share separately under a partition to which the plaintiffs were parties, and they made a false allegation that the plaintiff's two shares and Subbammal's share were all enjoyed according to the convenience of the three sisters without any permanent division by the plaintiffs and their sister, Subbammal, till the latter's death.)
2. The lower Courts dismissed the plaintiffs' suit on the ground that the plaintiffs are estopped from claiming title to possession of this one-third share as heirs of their father, because they and their sister purported to take the land under the will of their mother which gave one-third absolutely to Subbammal.
3. The Subordinate Judge relied upon the English case of Dalton v. Fitzgerald(1) in support of his view. The case of Dalton v. Fitzgerald and the prior case of Paine v. Jones(2) were considered in Rup Chand Ghosh v. Sarvesuiar Chandra. Chandra(3). Rampini, J., says: “In Dalton v. Fitzgerald the defendant obtained possession of certain land from a grantor, who had no title to it. By means of that possession he was able to acquire a good title by possession against the true owner. Hence, he was held to be estopped as against the grantor and his remaindermen from disputing the validity of the deed of grant.” Thus, the case of Dalton v. Fitzgerald, is authority only for the proposition that if possession is acquired under a particular grant, and could not be traced to any other title than as regards that particular property of which possession was so obtained, the grantee cannot claim the benefit of the English Statute of Limitations i.e, a claim to acquire an absolute title by adverse possession so as to deprive the remainder-men who were grander rights in remainder under the same grant under which the life tenant secured possession and entered into possession as life tenant. As Rampini, J., says: “The rule of estoppel laid down in Bigelow would see a to be that the estoppel only exists so long as the grantee claims under the title of his grantor alone.” Woodroffe, J., says that “if a grantee assert no other right or title than that from a common grantor, he will be precluded as against another grantee under the same instrument from denying that his grantor had a title when he conveyed.” See also Bigelow on Estoppel, 6th Edn., pp. 376 and 377, as to the limits within which the doctrine of estoppel laid down in Dalton v. Fitzgerald should be confined.
4. Without going so far as was said in Rup Chand Ghosh v. Sarveswar Chandra Chandra, that Section 115 of the Evidence Act, is exhaustive of the law of estoppel to be applied by the Courts in India, I am of opinion that Dalton v. Fitzgerald should not be extended beyond what is absolutely necessary to support the decision on the facts of that particular case. So confining it, the present case is clearly dis inguishable because (1) the plaintiffs do not rely upon the possession got under the will to claim the benefit of any statute of limitation giving the possessor absolute title; (2) the plaintiffs to not claim a higher right to the two thirds shire which was granted to them by the will (and of which they are in possession) than the right which was so given by the will, but their claim relates to the other one-third share to which no right was granted to them by the will; (3) neither their title nor their possession as regards the two thirds share need be traced to the invalid will at all, but it can be traced to their undoubted right as legal heirs of their father. The decisions of the lower Courts cannot therefore be supported on the ground on which they have based the said decisions Mr. C.V Ananthakrishna Aiyar, vakil for the respondent, argued that the lower Courts' decisions could be supported on two other grounds: (a) that the plaintiffs are estopped by Section 115 of the Evidence Act, from claiming title to the one third share, (b) that in any event, as the plaintiffs and Subbammal effected partition on the understanding that Subbammal should enjoy the property without any right in the plaintiffs to take har one-third share from her heirs or her assignees on her death, the plaintiffs cannot rely on their right of survivorship which they relinquished by the partition arrangement.
5. As regards the first contention, I do not think there is anything on the record from which it could be established that the plaintiffs by their conduct induced Subbammal to do anything to her own detriment. Subbammal and the plaintiffs all allowed their mother to execute the will and they all took under that will. No representation was made by the plaintiffs to Subbammal or by Subbammal to the plaintiffs. Either all of them were ignorant of their real rights or all of them knew their real rights and chose to act according to their ignorance or in spite of their knowledge, as the case may be. This contention therefore fails. The second contention involves more difficult questions. It must be now taken as settled that a partition of immovable properties of whatever value can be effected without any registered instrument in writing as it is not an exchange, sale, mortgage, or lease: see Gyannessa v. Mobarakannessa(4) which was decided by Ameer Ali and Macpherson, JJ. I feel bound by the authority of the decision of the eminent Judges who took part in that case, as that decision seems not to have been questioned in any other High Court. In Satya Kumar Banerjee v. Satakripal Banerjee(5) the decision in Gyannessa v. Moba akannessa was followed, and reference is further made to the Privy Council case in Rewun Pershad v. Mt. Radha Beeby(6). But the Privy Council case had been decided long the fore the Transfer of Property Act came into force. In Subramania Aiyar v. Savithri Ammal(7) it was held that if a partition was effected by an instrument in writing, and if the property was of the statutory value, the deed of partition must be registered. But as pointed out in Satya Kumar Banerjee v. Satya Kripal Banerjee the case in Subramania Aiyar v. Savithri Ammal does not lay down that partition cannot be effected orally. As I said before, I am not prepared to dissent from the view that notwithstanding the Transfer of Property Act, a partition of immovable property of whatever value may be effected by oral arrangement. In Ariyaputhira v. Muthukumaraswamy(8) I have ventured to state that “all conveyances of ownership right in lands were intended to be brought under. “sale” or “gifts” or “exchanges” and to be effected as a rule by registered instruments,” and I also expressed the wish that the British Indian Legislature would pass an enactment making a registered writing, indispensable for the validity of all settlements, partition agreements and wills and authorities to adopt, making very few exceptions in special cases (such as soldiers' and sailors' wills). I took it for granted in that decision that it was too late to hold that partition agreements could be validly made only by registered instruments.
6. In Latchumammal v. Gengammal(9) Benson and Krishnawamy Aiyar, JJ., held that there is nothing in the Transfer of Property Act to prevent co-widows from effecting an absolute division of properties orally. It seems to have been conceded there that, if the partition be only for life with the right of survivorship, it may be valid, though oral. Reliance was placed in that case on Thiruvengadachariar v. Ranganatha Aiyangar(10) for the view that partition need not be in writing. But the case in Thiruvengadachariar v. Ranganatha Aiyangar was the case of an oral transfer of lands to a sister by two brothers in satisfaction of a claim made by her. I ventured to doubt the correctness of that decision in Ariyaputhira v. Muthukumaraswamy. But so far as partition agreements are concerned, I have not come across any case which treats such transactions as coming under sales or exchanges. While I do not adopt the entire reasoning in Latchumammal v. Gengammal, therefore I think that if a partition (which involves relinquishment of mutual rights) can be effected orally, the mere fact that the rights mutually relinquished under the oral partition are to continue for periods of greator or less duration cannot have much bearing on the question whether written instruments are required to effect valid partitions. In this view, the plaintiffs having effected an oral partition with Subbammal giving her under the oral partition agreement an absolute right in plaint properties, which gift involves the relinquishment by themselves of their right to claim possession of the property if they survived Subbammal, the said partition arrangement is binding upon them, though it may not bind the reversioner nettled to the estate of Sambasiva Aiyar after the plaintiffs' death, and hence I hold that the plaintiffs' suit was rightly dismissed: see Ramakkal v. Ramasami Naicken(11).
7. In the result the second appeal is dismissed with costs.
Napier, J.:— I concur with my learned brother in holding that there was an oral partition acted on by the parties and that accordingly the second appeal should be dismissed.
S.N/R.K
8. Appeal dismissed.