JUDGMENT
B.D. Gupta, J.
1. This is a defendants’ second appeal arising out of a suit for possession over a plot of land by demolition of certain constructions made thereon by some of the defendants.
2. There is no controversy that one Brijnath constituted a joint Hindu family along with his three sons, Ram Nath, plaintiff-respondent, and Prem Lal who was arrayed as defendant No. 1, and one Lakshmi Nath who was not impleaded in the suit. Brijnath had died and, in the year 1946, the position was that the family consisted of the three sons described above. On the 18th July, 1946 Prem Lal sold a specific portion of a plot of land, consisting of the northern portion thereof, to one Barhma Devi with the recital that this property was Prem Lal’s separate property allotted to him as a result of partition between himself and other members of the family. By successive transfers the property ultimately came into the hands of Smt. Ram pyari and Kamla Devi who were arrayed as defendants Nos. 2 and 3 in the suit. The only other defendants impleaded were Ram Bharose Lal and Raja Ram, the respective husbands of the aforesaid ladies.
The plaintiff’s case was that his brother Lakshmi Nath had been mad since about twelve years and was in the Lunatic Asylum at Bareilly and had no wife or children, whereas Prem Lal was a stupid person incapable of understanding matters since the last seven years, that there had been no partition between the members of the family which was a joint Hindu family of which the plaintiff was the Karta and the eldest member. It was asserted that the transfer of the 18th July 1946 was without any right and the plaintiff was, therefore, not bound thereby, that defendants Nos. 2 and 3 had started raising constructions on the land and did not desist from continuing to do so in spite of objection by the plaintiff, even though defendants Nos. 2 and 3 had obtained no right whatever in the property by virtue of the sale deed of the 18th July, 1946 which had been executed by Prem Lal in respect of property which belonged to the joint Hindu family without any right or justification. The suit was instituted in the year 1951.
3. The suit was contested by defendants Nos. 2 to 5 who pleaded that, after the death of Brijnath, his sons had divided their ancestral property between themselves and that in the course of that partition the land in suit had fallen to the share of Prem Lal. Section 41 of the Transfer of Property Act, as also estoppel, were also pleaded.
4. The trial Court recorded the finding that, at the time of the transfer of Prem Lal in 1946, the brothers were members of a joint Hindu family to which the property in suit belonged, and that they continued to be joint until some time in 1949 when, as a result of a suit for partition filed by Prem Lal which culminated in a decree, disruption of the joint family took place. The plea under Section 41 of the Transfer of Property Act, as also the plea of estoppel, were answered against the defendants on the view that the transfer by Prem Lal in favour of the predecessors in interest of defendants Nos. 2 and 3 was void, and therefore, not binding. The trial Court decreed the plaintiff’s, suit as against defendants Nos. 2 to 5.
Against this decree an appeal was filed by defendants Nos. 2 to 5. The learned Judge took the view that the material time for considering the joint status or otherwise of the family was the year 1946 when Prem Lal executed the sale deed. The learned Judge then proceeded to decide the case on the view that the defendants-appellants may be taken to have established that the joint status had come to an end in 1949, Some arguments on the question of burden of proof were addressed before the learned Judge, but relying on the decision of the Privy Council in the case of Bhagwan Kunwar v. Mohan Singh, 23 All LJ 589 : (AIR 1925 PC 132) the learned Judge took the view that the raising of any presumption that the joint status had come to an end in or before the year 1946 would not be justified.
After considering the evidence of the parties relevant to the assertion of the defendants that the joint status had come to an end before 1946, the learned Judge agreed with the view taken by the trial Court that the family continued to be joint until the year 1949 when disruption took place by reason of the partition decree Ex. A-2. In this view of the matter the appeal was dismissed. Hence this second appeal by the defendants.
5. In support of his second appeal learned counsel for the appellants has urged that on the findings recorded by the Court below the suit for demolition and actual possession could not have been decreed. The contention is that it has been found that the three brothers Ram Nath, Prem Lal and Lakshmi Nath, formed a joint Hindu family in the year 1946 during which year Prem Lal transferred the property in suit in favour of the predecessor of the defendants Nos. 2 and 3. It may be assumed, it is urged, that at the time when this sale deed was executed, Prem Lal, being a coparcener of a joint family, had no right to make any transfer and the transfer was void and unenforceable.
Reliance, however, is placed on the further finding that in 1949, by virtue of a partition suit which had been filed by one of the brothers, separation took place in the family of the three brothers, and each of them became entitled to a one-third share in the property, including the property which had been sold by Prem Lal to the predecessor of defendants Nos. 2 and 3. It is urged that, in spite of the invalidity of the transfer made by Prem Lal on the date on which it was made, if Prem Lal became entitled to one-third share in the property; on the basis of the principle of feeding the grant by estoppel, his transferees became entitled to that share.
It has been argued that the transferees did not, therefore, remain trespassers, that on the date on which the suit was filed, one-third share of the property belonged to the plaintiff, one-third to Lakshmi Nath and one-third to the transferees of Prem Lal, and that defendants Nos. 2 and 3 were thus co-sharers. If they had built some constructions on the joint land without any objection being raised by the other co-sharers, the plaintiff who was a co-sharer could not get the constructions demolished or dispossess the defendants Nos. 2 and 3. It has been urged that at the most he could get his own share partitioned, that the only relief which could be granted to the plaintiff was a decree for joint possession over the land covered by the constructions, that the constructions belonged to the defendants Nos. 2 and 3 who had built them, that the other co-sharers including the plaintiff could not claim any share in them, and that, at the time of actual partition, equities could be adjusted between the parties.
6. The principle of feeding the grant by estoppel is a well known principle of English Law. The rule is known as the rule in Holryod v. Marshall, (1862) 10 H.LC. 191. The earliest Indian case in which it was applied was the case of Rajapakse v. Fernando, 1920 AC 892. It was laid down at page 197:
“Where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel.”
In Tilakdhari Lal v. Khedan Lal, 47 Ind App 239: (AIR 1921 PC 112)) Lord Buckmaster stated the rule in these words:
“If a man who has no title whatever to property grants it by a conveyance which in form would carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes.”
The principle has been recognised in India in Section 43 of the Transfer of Property Act, which appears to apply to the present case because here Prem Lal had erroneously represented to the defendants that he was authorised to transfer the property in question. He had executed a sale deed in respect of it for consideration. At the option of the transferees, therefore, the transfer could operate on any interest which Prem Lal acquired in the property while the contract of transfer was subsisting. In the present case a transferable interest was acquired by him when, as a result of the separation from his brothers, he became entitled to one-third share in the property.
7. If this principle is applicable, as it appears to
be, though Prem Lal was not entitled to transfer any share
in the property in 1946, he became entitled to transfer
one-third share in 1949 and his transferees, therefore,
became the owners of that one-third share. They were the
owners of that share in 1950 when the suit was filed. They
could not, therefore, be considered to be trespassers who
could be ejected from the land by the plaintiff. The
constructions which the defendants had built on the land
were, therefore, constructions built by one of the co-sharers
on joint land which had been allowed to be built without
any objection by the other co-sharers. The defendants
being co-sharers in possession, as against them the plaintiff could only get a decree for joint possession entitling
him to sue for partition.
8. Learned counsel for the plaintiff-respondent relied on the decision of a Bench of this Court in Sheotahal Dube v. Lal Narain Prasad, AIR 1931 All 695 (1). The principle laid down in the decision could only cover a case where
the suit is for ejecting a trespasser. That principle cannot, therefore, be applied to the facts of the present case inasmuch as, at the time the suit was instituted, the defendants Nos. 2 and 3 could not be treated as trespassers. The result is that the plaintiff cannot obtain possession over the entire property by demolition of the constructions, made by the defendants Nos. 2 and 3.
9. This appeal is, therefore, allowed and the decree passed by the courts below is modified to this extent that the plaintiff’s suit is decreed only for joint possession over a one-third share of the property in suit. In the circumstances of the case, I direct that the parties shall bear their own costs throughout.
10. Leave to appeal to a Bench is refused.