Judgement

Appeal (No. 98 of 1921) from a judgment and decree of the Court of the Judicial Commissioner (March 20, 1918) affirming a judgment of the Subordinate Judge of Bara Banki.

The appellant instituted a suit to recover from the respondent, with mesne profits, a half of an Oudh taluqdari estate, under a deed of sale dated January 2, 1880, by which the respondent purported to sell to the appellants deceased husband; alternatively the appellant claimed by her plaint to recover Rs.25,000, the purchase money, with interest.

The circumstances in which the deed of sale was entered into appear from the judgment of the Judicial Committee.

The deed stated that the executant, the present respondent, had borrowed a further Rs.5000 from Rachpal Singh, making Rs.25,000 in all, and that in lieu of that entire amount the executant did "thereby absolutely sell" half of all the villages, detailed below, in the taluqa; it concluded as follows " Therefore I do hereby declare and put in writing, that after the death of the said ladies " (i.e., the widows of the last holder) " or whenever I may get possession over the said taluqa, I shall put the vendee immediately in proprietary possession of half the villages of the said taluqa as vendee thereof. I shall also get the name of the said vendee recorded in the decree relating to the said taluqa passed in my favour by the Civil Court, on October 22, 1878, to the extent of a moiety of the entire taluqa, that in case I delay the same the said vendee will be at liberty, on the basis of this deed, to move the Court and take proprietary possession as purchaser of the said villages and to get the mutation of names effected by a competent Court in his favour."

The Subordinate Judge held that the respondent at the date of the deed had merely a right of expectancy in the estate, and that no property passed under it. He held that the suit to recover the money was barred by the Indian Limitation Act, 1908, Sch. I,, art. 62 ; in his opinion the limitation period ran from the date of the payment of the purchase money. He accordingly dismissed the suit.

An appeal to the Court of the Judicial Commissioners was dismissed. The learned Judicial Commissioners rejected a contention that having regard to the Oudh Estates Act, 1869, the respondent had a vested interest in the estate at the date of the sale deed; they agreed with the trial judge that he had only an expectancy of inheriting. They pointed out that the Transfer of Property Act, 1882, s. 6, did not apply as the deed was executed in 1880, but that it had frequently been decided, apart from that section, that a reversionary heir under Hindu law cannot sell or mortgage his expectancy. If there was any agreement it was void under s. 23 of the Indian Contract Act, 1872; consequently the principles of equity could not be invoked to give effect to it. They were of opinion that the money claim was barred by limitation, the period running from the execution of the deed at latest, whether under art. 62 or art. 97 of Sch. I. of the Indian Limitation Act.

1922. Oct. 26, 27. Sir George Lawndes K.C. and Dube for the appellant. At the date of the sale the respondent had more than a mere expectancy. The succession was governed by Act I. of 1869, not by ordinary law. By the decree made in 1873 he had been declared "heir," and under that decree he had a vested interest. When that decree was made it had not been decided that succession under Act I. of 1869 opens on the death of-the widow see Sykes Compendium, p.273. It was a reasonable view to take in 1878, that having regard to the definition of " heir " in s. 2 of the Act, and to s. 22, sub-ss. 6, 7, a widow took a life estate while the estate vested in the heir. If the respondent had a vested interest in 1880 the observation in Sham Sunder Lal v. Achhan Kunwar (( 1898) L. R. 25

I. A. 183, 189.), that an expectancy cannot be bound under Hindu law, is not relevant. [Reference was also made to Brahmadeo Narayan v. Harjan Sin