Judgement

Consolidated Appeals from a judgment and four decrees of the High Court (July 11, 1910) reversing two decrees and varying two further decrees of the First Subordinate Judge of Gaya.

The appellants instituted a suit against each of the four sets of respondents in the present consolidated appeals to recover specified parcels of land. The first two appellants claimed as the sons and heirs of Hanuman Sahai, who died in 1906. They alleged that Hanuman Sahai had purchased the properties in suit from the reversionary heirs thereto upon the death, in 1894, of Mahasundar, who was his maternal grandmother. The third appellant, Mahesh Lai, had purchased a half share of the properties from the first two appellants. The respondents claimed the properties under kobalas (sale deeds) executed by Mahasundar.

Two of the consolidated appeals had been compromised subsequently to the judgment of the High Court. The two appeals now contested were the second and the third on the record. The second appeal related to a half share in the village of Amhara, which the respondent (defendant). Mahant Thok Narayan, claimed under a kobala executed in 1880 in favour of his predecessor by Mahasundar Hanuman Sahai and his mother, Bhawani, had been joined as parties to the deed. In the third appeal the respondents. Massamat Ram Kunwar and others, claimed the properties therein in dispute under a kobala which was not produced, but was alleged to have been executed in 1854 by Mahasundar alone.

The respondents, by their written statements, denied that the vendors to Hanuman Sahai were the reversionary heirs upon the death of Mahasundar ; they also contended, inter alia (1.) that Mahesh Lai, the third appellant (plaintiff), had purchased the half share in all the properties merely as benamidar for one Rafiuddin, and that he was consequently not entitled to sue ; (2.) that the appellants were estopped as to the village of Amhara, and certain property in dispute to one of the settled appeals, in that Hanuman Sahai had joined as a party in the conveyances by Mahasundar; and (3.) that the properties had been alienated by Mahasundar for necessity and the benefit of the estate.

The subordinate judge decreed all four suits. With regard to Mahesh Lai, he found that it was not proved that he was a benamidar, and upon a review of the authorities he held that, even if that were the case, Mahesh Lal could maintain the suit. He further held that no estoppel arose, and that no legal necessity had been proved.

The High Court (Chatterji and Vincent JJ.) came to the conclusion that Mahesh Lal was merely a benamidar, and dismissed all four suits as to the half interest claimed by him. They said "So far as this court is concerned, it seems to be settled law now that a benamidar cannot maintain a suit for the recovery of property." They referred to cases reported at I. L. R. 16, C. 364 ; I. L. R. 25, C 98 ; and

I. L. R. 30, C. 265 ; and said “We see no reason to differ from those cases." With regard to the estoppel relied on, they said that although s. 43 of the Transfer of Property Act, 1882, did not apply, since the transfers had been executed before that Act was passed, the principle embodied in the section was not new, and had been applied in many cases. Though in Dooli Chanel v. Brojo Bhookun (( 1880) 10 Cal. L. R. 61.) the Privy Council seemed to have been inclined to hold that it did not apply to Hindu conveyances, it was recognised by the illustration to s. 115 of the Indian Evidence Act, 1872, and by s. 18 {a) of the Specific Relief Act, 1877. The principle was based mainly upon the doctrine of courts of equity that a person who enters into a contract without having at the time the power of performing it is bound to perform it if he subsequently acquires the power. Hanuman by the kobala asserted that as a result of the earlier litigation therein referred to it had been settled that Mahasundar was to hold for life, then Bhawani and then Hanuman, so that the three full