The transfer of possessory title and physical possession, with the real owner of the property being an assenting party, can bar a party from seeking to recover the property allotted to others.

Phillips, J.

1. The plaintiff in this case, one Somi Naidu and the father of the defendants were brothers who effected a partition in 1898. This case relates to the share which fell to Somi Naidu. He died in 1906, leaving a widow. In 1907 the plaintiff and the defendants entered into an arrangement under which they partitioned Somi Naidus share and agreed that the defendant should pay a certain sum to the widow, who lived till 1914. She appears to have taken no objection to this arrangement. The plaintiff now seeks to recover the property allotted to the defendants under this agreement of 1907, and it is contended for the appellants that he is barred from doing so by reason of this agreement and reliance is placed on a decision of the Privy Council in Kanhai Lal v. Brij Lal [l918] 40 All. 487. In that case one Kanhai Lal who subsequently became the reversioner of a widow Bam Deiclaimed the whole of the property which fell to the widow as reversioner. Before the reversion fell in, there was litigation between the parties, Kanhai Lal claiming to be the adopted son of one widow and setting up that her husband was divided from his brothers. These disputes were compromised in 1892 and certain properties fell to each of the disputants Kanhai Lal, Bam Dei and two other widows. It was held by the Privy Council that Kanhai Lal was debarred by his act in 1892 from claiming as reversioner. The Subordinate Judge declined to apply this decision of the Privy Council to the present case on the ground that Kanhai Lal did not enter into the compromise as reversioner, presumably holding that in this case the plaintiff entered into his arrangement with defendant as reversioner. There is nothing in the documents, Exs. 1 or 1A to, show that plaintiff was acting in his capacity as reversioner nor is there anything to show that he intended to or did transfer his spes successionis as has been held by the lower appellate Court. What was transferred was the plaint property and not only was it transferred by the document but actual possession was given by the plaintiff to the defendants and that possession has continued ever since. Even if the plaintiffs title to the property were bad, there is no legal objection to his transferring such title. He not only did this, but he also transferred his possessory title and gave effect to the latter by transferring possession. There is, therefore, no question of the transfer of a mere spes successionis. Had he purported to transfer only his right to the property, it no doubt, might be regarded as the transfer of his spes successsionis, which was the only right he had then in the property. In as much as he did trans per physical possession it is something more than a transfer of spes successionis. The Privy Council decision cannot, therefore, be distinguished on this ground. In other respects it appears to me to be clearly applicable. In Kanhai Lals case [1918] 40 All. 487 it was held that all the interest which he held in the property of the family in 1892, namely, when the compromise was entered into, was the mere possibility of becoming the immediate reversioner. Notwithstanding this, it was held that the compromise was not the mere transfer of a spes successionis and was consequently binding on Kanhai Lal. Here too, the plaintiff had no other legal right to the property at the time he executed Ex. 1 but the possibility of succeeding to the estate: but he had possession of the property and purported to transfer that. Now he seeks to set aside that arrangement. That arrangement was entered into by the members of the family and the real owner of the property was an assenting party and also received some benefit under it. It is not now open to the plaintiff to go behind that arrangement and seek to deprive the defendants of the share allotted to them. The appeal must be allowed and the plaintiffs suit dismissed with costs throughout.