The court emphasized the application of estoppel under Section 43 of the T.P. Act and the rights of parties based on the void contract, while also addressing the practical difficulty of passing a decree in the absence of all sharers.

Horwill, J.

1. The property now in dispute originally belonged to one Venkatachalam, who conveyed it by gift to his daughter Adhilakshmi. As it was the stridhanam property of Adhilakshmi, it descended to her daughters Ramalakshmi, Venkatachalavadivoo and Mahalakshmi. As Mahalakshmi had become a widow and Venkatachalavadivoo had died leaving a daughter Chellathammal, Ramalakshmi entered into an agreement Ex. B, with Chellathammal, whereby they divided the property roughly in the proportion of two to one, Ramalakshmi undertaking to support her widowed sister Mahalakshmi. The suit property is the property that fell to the share of Ramalakshmi. Ramalakshmi had two sons, Subramania and defendant 10, and two daughters, the plaintiff and defendant 9. After Ramalakshmis death her elder son Subramania seems to have got possession of the property, and since his death, his sons, defendants 1 and 2 have been enjoying it. The plaintiff brought the present suit, claiming that the suit property belongs to her and defendant 9. Both the lower Courts have held that the property belonged jointly to the plaintiff, defendant 9, and Chellathammal, and that as Chellathammal was not made a party, the suit was not maintainable. Incidentally, the trial Court found that defendant 9 was not entitled to any share for the further reason that by the time she had filed her written statement laying claim to a share, her claim would have been barred by limitation. She did not appeal in the lower appellate Court; and so the lower appellate Court also found that defendant 9 would not have been entitled to recover her share in the property even if the plaintiff had been successful. The plaintiff has filed this appeal.

2. Mr. V. Ramaswami Aiyer contends that although Ex. B, the transaction entered into between Ramalakshmi and Chellathammal, is not a legally binding contract, because Chellathammal at that time possessed nothing more than a spes successionis, she would be precluded from questioning that contract by the principle of estoppel set out in Section 43, T. P. Act. Section 43, however, applies only when a party in possession of special knowledge makes an incorrect representation to the other party to the contract, whereby the other party is induced to enter into the contract and the person making the representation gets the benefit of it. It cannot reasonably be argued in this appeal that Chellathammal made any representation to Ramalakshmi which estops Chellathammal from questioning the right of the heirs of Ramalakshmi. Chellathammal was a young woman who had only just attained majority, whereas Ramalakshmi must have been a woman of fifty five years of age at that time. To say the least, Ramalakshmis knowledge was equal to that of Chellathammal; and they entered into the contract with their eyes open, though they may not have known that the contract they were entering into was void. As Section 43 does not apply to the facts of this case, we have to consider the rights of the parties on the footing that the contract is void and that Chellathammal has a right to one-third of the suit property. It may incidentally be mentioned here that Chellathammal, in pursuance of the agreement, Ex B, entered into possession of the property which fell to her share under Ex. B and has apparently been in possession of it ever since. The learned Subordinate Judge held that the plaintiffs suit must be dismissed because she denied the rights of Chellathammal; and he quoted as authorities Koola Naicken v. Muthayammal (1911)21MLJ997 and Ponnayya Thirumalai Vendya Thevar v. Kandasami Vendaya Thevar 17 Ind. Cas. 136. In both these cases, however, the plaintiff was granted a share of the property although he prayed for the whole of it; and in 17 Ind.Cas. 1362 it moreover appears that the owner of the other share of the property was not on record. It is true that in 17 Ind.Cas. 1362 it is said : "If he (plaintiff) asserted an exclusive title in himself, the suit would be liabl