Judgement

Consolidated Appeal (No. 10a of 1921) from a judgment three decrees of the High Court in its appellate jurisdiction (April 22, 1921) affirming decrees of the Court in its original-jurisdiction.

The three suits giving rise to the consolidated appeal were brought by the appellant in the High Court against the respondents severally in the following circumstances.

Gopal Lal Seal, a Hindu governed by the Dayabhaga, died childless in 1902 leaving two widows and five nephews, including among them the three respondents. After his death a will was propounded by which the greater part of the property of the deceased was devised to his nephews, including the respondents. That will was pronounced by the High Court to be a forgery.

On May 7, 1908, while an appeal to the Privy Council was pending, the appellant and the respondents severally entered into agreements now sued on. These agreements were to the same effect, and it is sufficient to refer to that with the first respondent. In consideration of payments of Rs. 300 a month, which the appellant had been making to the respondent and agreed to continue, the agreement provided "I, Gour Mohan Mullick, shall convey in your favour whatever rights I have to the estate of Gopal Lal Seal deceased (that is to say, rights under the will or reversionary rights) immediately upon the same being established." It was further provided that if the appeal failed, the respondent within three months of getting any share of the property would sell to the appellant for the consideration already stated; also that if the widows of the deceased should relinquish their life interest, either jointly or severally, or sell the same to the appellant, then the respondent becoming owner of a share by inheritance would within three months transfer it to the appellant.

The appeal to the Privy Council was dismissed in 1909.

One of the widows died in 1917, and in 1918 one of the respondents having brought a suit against the other widow claiming the property, the parties to that suit entered into a compromise whereby the nephews obtained half the entire property in equal shares.

The appellant by his plaints in the present suits claimed a conveyance from each of the respondents of the share which he had received, or alternatively to recover the sum advanced to him. The respondents by their written statements pleaded (inter alia) that the agreement was void and inoperative in law as being for a transfer of an expectancy.

Four issues arising upon that pleading were tried as preliminary issues by Greaves J., the trial of the remaining issues, which included issues as to the plaintiffs alternative claim and whether it was barred by limitation, stood over.

The learned judge held that the agreement was void and the suit for specific performance not maintainable.

That decision was affirmed on appeal by Mookerjee and Fletcher JJ., the remaining issues not being tried.

1923. June 4. De Gruyther K.G. and Abdul Majid for the appellant. If the agreement was unenforceable the appellant nevertheless was entitled under s. 65 of the Indian Contract Act to recover the money which he had advanced. Whether that cause of action was barred by limitation depends upon when it was "discovered" that the agreement was void ; that date may have been later than the date of the agreement Harnath Kuar v. Indar Bahadur Singh. (L. R. 501. A. 69.) If necessary the suit should be remitted in order that evidence may be adduced on that question. But it is submitted that the property having come to the hands of the defendant the agreement is enforceable. Sect. 6 (a) of the Transfer of Property Act prohibits merely a transfer of an expectancy, but does not prohibit an agreement to transfer one ; there is nothing in Hindu law which prohibits an agreement of that nature, and its validity is recognized by the Contract Act Ram Wirunjun Singh v. Prayag Singh (( 1881) I. L. R. 8 C. 138, 145.); Pindiprolu Sooraparaja v. Pindiprolu Veerabhadrudu (( 1907) I. L