Civil Appeal No 8 of 1951
Appeal from the judgment and decree dated 12th October 1944 of the High Court of Judicature at Allahabad Allsop and Malik JJin First Appeal No 374 of 1941 arising out of a Decree dated 31st July 1941 of the Court of the Civil Judge Moradabad in Original Suit No 9 of 1941
Bakshi Tek Chand section K Kapoor with him for the appel lant
Achhru Ram Jwala Prasad with him for the respondent
February 22
The judgment of the Court was deliv ered by BoSE J
This is a litigation between two branches of a family whose common ancestor was one Megh Raj Singh The family tree is as follows Megh Raj Singh Jawahar Singh Madan Singh Shankar Lald 1884 Brijlal d 1889 or 1890 Daughter Met
Mohan Dei d Oct 1929 Kishan Lal Mahabir Prasad Husband Narain Das d 21 5 1940 d 1921 Shri Kishan Das Mst
Deoki Jugal Kishore Amar Nath dmarch 1929 d 1894 Plff
1 Plff2
Dhiyan Singh Jai Bhagwan Singh Deft
1 Deft 2 Ghas Ram Onkar Prasad The dispute is about property which according to the plaintiffs formed part of Shanker Lal s estate
The plain tiffs state that the two branches of the family were sepa rate at all material times that on 480 Shanker Lal s death in 1884 his daughter Mst
Mohan Dei the defendants  grandmother succeeded to a limited estate
The reversion opened out on her death in October 1929 and the plaintiffs are entitled as the next reversioners for Mst
Mohan Dei s son Shri Kishan Das predeceased her
The defendants admit that Shanker Lal was separate from the other branch of the family
They divide the property which their grandmother Mst
Mohan Dei possessed into two categories
First there was property which they say be longed to her
These are properties which according to them she purchased or obtained under mortgages in her own right
Next there were properties which belonged exclu sively to her father and to which she succeeded as daughter
On Shanker Lal s death disputes arose between Shanker Lal s father s brother s son Brijlal the plaintiffs  grandfa ther and the defendants  grandmother Mst
Mohan Dei
Brijlal claimed the entire estate by survivorship his allegation being that Shanker Lal died in a state of joint ness with him and that all the properties were joint family properties
This dispute was referred to arbitration and an award was delivered
Under it Mst
Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal A division was ef fected accordingly and ever since that is to say from 21 12 1884 the date of the award down to 26 3 1941 the date of the suit each branch has been in separate and uninter rupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner
The defendants claim that the plaintiffs are bound by this award and are in any event estopped
The plaintiffs lost in the first Court but won in the High Court
The defendants appeal
The first question is about the nature of the award
The defendants say that it gave Mst
Mohan Dei an absolute estate
The plaintiffs deny this and say she obtained only a limited estate
In our opinion the defendants are right
481 The question at issue is a simple one of construction
The award is exhibit A 1
The operative portion runs thus Having regard to the specifications give above Brij Lal first party and Musammat Mohan Devi the deceased s female issue second party have been held entitled to shares worth Rs 28500 and Rs 42482 10 0 respective ly in the said properties and accordingly two lots have been made and the first lot is allotted to the first party and the second lot to the second party and henceforth the parties shall have no claim or liability against each other and each party has become permanent owner malikmustaqil of his or her share and each party should enter in proprietary possession and occupation of his or her respective share  The underlining is ours
We do not think the words admit of any doubt particu larly as the words malik mustaqil have been used see Ram Gopal vs Nand Lal and Others 1 and Bishunath Prasad Singh vs Chandika Prasad Kumari 2
But it was argued that the award must be viewed as a whole and that certain earlier passages show that this could not have been the intention he passages relied on are these
First the finding that the properties claimed by Mst
Mohan Dei as her own really belonged to Shanker Lal
He had purchased some and acquired others through mortgages in her name but she was only a benamidar and had no title to them
Second that some of the properties in dispute were ancestral and the rest sell acquired though whether with the help of ances tral funds or not the arbitrator was unable to determine
Third the arbitrator s view of the Hindu law namely that the brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self acquired property
 And lastly this passage 1  at 77321933 60 IA 56 at 61  62 482 Furthermore when the 2nd party Mohan Dei has inher ited no property from her husband she in case of getting this share will certainly settle down in Amroha and will make her father s haveli as her abode and thus the haveli shall remain a bad as heretofore and in this way the de ceased s name will be perpetuated and it is positive that after the Musammat this property shall devolve on her son who will be the malik owner thereof and later the de scendant of this son will become the owner thereof
 We do not think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do
In our opinion the arbitrator was confused in his mind both as regards the facts as well as regards the law
His view of the law may have been wrong but the words used are in our opinion clear and in the absence of anything which would unambiguously qualify them we must interpret them in their usual sense
Some cases were cited in which the word malik and in one case the words malik mustaqil were held to import a limited estate because of qualifying circumstances
We think it would be pointless to examine them because we are concerned here with the document before us and even if it be conceded that words which would ordinarily mean one thing can be qualified by other words and circumstances appearing in the same document we are of opinion that the passages and circumstances relied on in this case do not qualify the strong clear and unambiguous words used in this document
The learned counsel for the plaintiffs respondents had to search diligently for the meaning for which he contended in other passages and had to make several assumptions which do not appear on the face of the award as to what the arbitra tor must have thought and must have intended
We are not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made to coincide with either view by calling in aid assumptions of fact about whose existence we can only guess 483 The award was attacked on other grounds also
It was urged among other things that the arbitrator had travelled beyond the terms of his reference in awarding Mst
Mohan Dei an absolute interest
It was also urged that even if Brij lal was bound his son Kishan Lal who did not claim through him but who had an independent title as reversioner to Shanker Lal would not be bound and it was contended that if Kishan Lal was not bound the plaintiffs would not be either
But we need not examine these points because we do not need to proceed on the binding nature of the award
Even if the award be invalid we are of opinion that the plaintiffs  claim is completely answered by the plea of estoppel
Now it can be conceded that before an estoppel can arise there must be first a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other second that the other party believing it must have been induced to act on the faith of it and third that he must have so acted to his detriment
It will be necessary to deal with this in stages and first we will consider whether there was any estoppel against Brijlal
It is beyond dispute that he laid serious claim to the property in 1884
He claimed that he was joint with Shanker Lal and so on Shanker Lal s death he became entitled to the whole of the estate and that Mst
Mohan Dei had only a right of maintenance
Whether he would have had difficulty in establishing such a claim or indeed whether it would have been impossible for him to do so is wholly immaterial
The fact remains that he pressed his claim and was serious about it so much so that he was able to per suade the arbitrator that he had an immediate right to part of the estate
Mohan Dei on the other hand resisted this claim and contended that she was entitled to separate and exclusive possession and in any event that she was entitled in absolute right to a part of the property
On the facts which now emerge it is evident that Brijlal had no right and that his hopes of one day succeeding as 484 reversioner were remote
Mohan Dei had a son Shri Kishan Das who was the next presumptive reversioner and as the boy was a good deal younger than Brijlal Brijlal s chances were slim
Actually the boy survived Brijlal by nearly forty years
Brijlal died in 1889or 1890 and the boy did not die till March 1929
Had he lived another eight or nine months he would have succeeded and the plaintiffs would have been nowhere
Now this dispute seriously pressed by both sides was referred to arbitration
It is neither here nor there whether the award was valid whether the decision fell within the scope of the reference or whether it had any binding character in itself
Even if it was wholly invalid it was still open to the parties to say Never mind whether the arbitrator was right or wrong his decision is fair and sensible so instead of wasting further time and money in useless litigation we will accept it and divide the estate in accordance with his findings
That would have been a perfectly right and proper settlement of the dispute and whether it bound third parties or not it would certainly bind the immediate parties and that in effect is what they did
By his conduct Brijlal induced Mst
Mohan Dei to be lieve that this would be the case and on the faith of that representation namely the acceptance of the award he induced Mst
Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciable portion of the estate and he himself obtained a substantial advantage to which he would not otherwise have been entitled and enjoyed the benefit of it for the rest of his life and to his credit be it said he never attempted to go behind his decision
In any event we are clear that that created an estoppel as against Brijlal
In our opinion the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal vs Brij Lal 1
There also there was a dispute between a limited owner and a person who but for an un proved claim adoption which he 1 1919 45 IA 118
485 put forward had no right to the estate
The dispute was taken to the courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years
Later the succession opened out and the other party to the compromise who by then had stepped into the reversion claimed the rest of the estate which had been assigned to the limited owner against her personal heirs
The Judicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit namely as reversioner he having been a party to the compro mise and having acted on it and induced the other side to alter her position to her detriment was estopped
We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitra tor
makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions are correct
It is true that in one sense a question of title is one of law and it is equally true that there can be no estoppel on a question of law
But every question of law must be grounded on facts and when Brijlal s conduct is analysed it will be found to entail an assertion by him that he admitted and recognised facts which would in law give Mst
Mohan Dei an absolute interest in the lands awarded to her
It was because of that assertion of fact namely his recognition and admission of the existence of facts which would give Mst
Mohan Dei an absolute interest that she was induced to part with about one third of the property to which Brijlal on a true estimate of the facts as now known had no right
There can be no doubt that she acted to her detriment and there can we think be equally no doubt that she was in duced to do so on the faith of Brijlal s statements and conduct which induced her to believe that he accepted all the implications of the 63 486 award
But in any event we are clear that Brijlal would have been estopped
The nature of the dispute and the de scription of it given in the award show that there was considerable doubt and certainly much dispute about the true state of affairs
Even if the arbitrator was wholly wrong and even if he had no power to decide as he did it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide
That in our opinion is a representation of an existing fact or set of facts
Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst
Mohan Dei an absolute interest in the suit property
We turn next to his son Kishan Lal
Brijlal died in 1889 or 1890
At that date Mst
Mohan Dei s son Shri Kishan Das was alive and was the next presumptive reversioner
Brijlal s sons therefore had no more right to that portion of his estate which was assigned to Brijlal than Brijlal himself
But they took possession and claimed through their father hey did not claim an independent title in them selves and as we know they had no other title at that date
They were therefore in no better position than Brij lal and as Brijlal would have been estopped the estoppel descended to them also because they stepped into his shoes
This would be so even if Brijlal had claimed the property independently for himself which he did not but much more so as he claimed in joint family rights and evidently acted as karta or manager on behalf of his family
But apart from this there was also an independent estoppel in Kishan Lal
We have said he had no right to this part of the estate when his father died apart from the award
But nevertheless he took possession along with his brother and the two of them treated the property as their own and derived benefit 487 from it
They partitioned the estate between themselves and sold away parts of it to third parties
Kishan Lal knew of the award
He knew that mutation had been effected in accordance with it and possession taken by Brijlal under it and that the rest had been retained by Mst
Mohan Dei
His retention of the property therefore and his continuing to deal with it on the basis of the award indicated his own acceptance of the award and therefore by his acts and conduct he represented that he also like his father admitted the existence of facts which would in law give Mst
Mohan Dei an absolute estate and further he allowed Mst
Mohan Dei to deal with the estate as her own for she on her part
also acted on the award and claimed absolute rights in the property assigned to her
She dealt with it on that footing and gifted it in that right to her grand sons the contesting defendants on 4th April 1929
Muta tion was effected and Kishan Lal raised no objection
We see then that Brijlal retained possession of property to which he was not entitled for a period of five or six years from 1884 to 1889 or 1890 and induced Mst
Mohan Dei to part with it by representing that he accepted the award and her abso lute title to the rest and after him Kishan Lal and his brother between them enjoyed the benefit of it from 1889 or 1890 down to October 1929 when Mst
Mohan Dei died that is for a further forty years and led Mst
Mohan Dei to believe that they also acknowledged her title to an absolute estate
We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above
Had he questioned the award and reopened the dispute Mst
Mohan Dei would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlal s asser tion that he too accepted it
Kishan Lal s inaction over these years with full knowledge of the facts as is evident from the deposition of DW 2 Dhiyan Singh whose testimony is uncontradicted and his acceptance of the estate with all its consequential benefits unquestionably creates an estoppel in him
This witness tells us that 488 Kishanlal always accepted this award and acted upon it
 He qualifies this in cross examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mst
Mohan Dei s death
The documents filed show it was after so there is no reason why the main portion of his statement which is uncontradicted and which could have been contradicted should not be accepted
In March 1929 Mst
Mohan Dei s son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner and in October 1929 when the reversion opened out the estate vested in him or rather would have vested in him but for the estoppel
The question therefore is did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion  We have no doubt he did
The decision of the Judicial Committee which we have just cited Kanhai Lal vs Brijlal1 is we think clear on that point
Although other reversioners who do not claim through the one who has consented are not bound
the consenting reversioner is estopped
This is beyond dispute when there is an alienation by a limited owner without legal necessity
See Ramgouda Annagouda vs Bhausaheb 2 where the ground of decision was  but
Annagouda himself being a party to and benefiting by the transaction evidenced thereby was preclud ed from questioning any part of it
 In our opinion the same principles apply to a case of the present kind
It was contended however on the strength of Rangasami Gounden vs Nachiappa Gounden3 and Mr Binda Kuer vs Lalitha Prasad4 that even if Kishan Lal did take posses sion in 1889or 1890 on the strength of a title derived from his father that would not have precluded him from asserting his own rights in a different character when the succession opened 11918 45 IA 118
2 1927 54 IA 396 at 403
3 1919 46 IA 72
4 1936 AIR 1936 PC 304 at 308
489 out
Reliance in particular was placed upon page 808 of the latter ruling
In our opinion that decision is to be distinguished
In that case the reversion did not fall in till 1916
Long before that namely in 1868 the next presumptive reversioners entered into a compromise whereby the grandfa ther of one Jairam who figured in that case obtained a good deal more than he Would have been entitled to in the ordi nary way
But for the compromise this grandfather would have got only one anna 12 gundas share whereas due to the compromise he got as much as 2 annas 4 gundas The actual taking of possession was however deferred under the compro mise till the death of one Anandi Kuer
She died in 1885 and on that date Jairam was entitled to his grandfather s share as both his father and grandfather were dead
Jairam accordingly reaped the benefit of the transaction
But it is to be observed that the extra benefit which he derived was only as to a 12 gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own right under a title which did not spring from the com promise
Jairam lost 1 anna 4 gundas to a creditor Munniram and out of the one anna which he had left from the 2 annas 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs 500
Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs pur chased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12 gundas to which he had a good and independent title anyway and of course unless the plaintiffs  13 gundas could be assigned with certainty to the 12 gundas it would be impos sible to say that they had obtained any benefit from the compromise
The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise
They had the right to contest the 490 position and gamble on the possibility of being able to prove the contrary
Their Lordships added  Unless the plaintiffs  individual conduct makes it unjust that they should have a place among Bajrangi Lal s reversioners their legal rights should have effect
 In the other case Rangasami Gounden vs Nachiappa Goun den1 their Lordships  decision about this matter turned on the same sort of point see page 87
The present case is very different
When Kishan Lal took possession of his father s property he held by virtue of the award and under no other title and for forty years he continued to derive benefit from it
Accordingly he would have been estopped even if he had claimed in a differ ent character as reversioner after the succession opened out
It was conceded that if the estoppel against Kishan Lal enured after October 1929 then the plaintiffs who claim through Kishan Lal would also be estopped
The appeal succeeds
The decree of the High Court is set aside and that of the first Court dismissing the plaintiffs  claim is restored
Costs here and in the High Court will be borne by the plaintiffs respondents
Appeal allowed
1 1919 46 IA 72


Summary:
S and B were sons of two brothers respectively
S died in 1884 leaving a daughter M surviving him
On the death of S dispute arose between B and M B claimed the entire estate by survivorship alleging that S died in a state of jointness with him and that all the properties were joint family properties and M was entitled only to maintenance
The dispute was referred to arbitration and an award was delivered
Under it the suit properties were given to M and the rest of the estate then in dispute was given to B
The operative part of the award stated inter alia that B first party and M the second party were held entitled to speci fied shares in the properties in dispute and each had become permanent owner Malik Mustaqil of his or her share
A division was effected and ever since the date of the award in 1884 each branch continued in possession of the proper ties allotted to it and each had been dealing with them as absolute owner
The defendants claimed that the plaintiffs were bound by the award and were in any event estopped from challenging it
In 1941 B s grandsons instituted a suit claiming the properties allotted to M claiming that on the death of S his daughter M succeeded to a limited estate and reversion opened out on her death in 1929 and the plain tiffs were entitled as next reversioners as M s son had predeceased her
The defendants Ms grandsons alleged that the property possessed by M consisted partly of property which belonged to her and partly of property which belonged exclusively to her father to which she succeeded as daughter
Held that the award gave an absolute estate to M as the words Malik Mustaqil were strong
clear and unambiguous and were not qualified by
other words and circumstances appearing in the same document in the present case
Held further
that even if the award be assumed to be invalid the plaintiffs  claim was barred by the plea of estoppel
There was estoppel against B because by his conduct he induced M to believe that the decision of the arbitrator was fair and reasonable and both the parties would be bound by it and he induced her to act greatly to her detriment and to alter her position by accepting the award and never attempting to go behind it as long 479 as he lived there was estoppel against B s sons because it descended to them as they stepped into his shoes and fur ther there was independent estoppel against B s son K by his acts and conduct as evidenced in this case
There was estoppel against plaintiffs who claimed through their father K