JUDGMENT
Devadoss, J.
1. The only question in this case is whether the plaintiffs are estopped from claiming the property which was given to Mangalammal under Ex. I. The learned Subordinate Judge has dismissed the plaintiffs’ suit so far as this property is concerned on the ground of the equitable estoppel. The gift was by Subbaraya Sastri to his daughter Mangalammal under Ex. I. He had two sons Ramanatha Sastri and Vanji Sastri. Some time after the gift, Vanji Sastri wrote to the 1st respondent and begged him almost to buy the property from Mangalammal as she found it difficult to manage the property and as they were going to buy some other property for her in some other place. Relying upon this statement of Vanji Sastri, the 1st respondent purchased the property under Ex. II on 7-6-1908 which was attested by Ramanatha Sastri, the son of Subbaraya Sastri and the father of the plaintiffs. The plaintiffs bring this suit to have the alienation declared invalid. It is clear from Ex. I that Mangalammal was given a life interest in the property. A sale by a limited owner would not be binding on the reversioners unless the purpose of the sale is such as to bind the reversioners. Here the sale was for cash and the mere fact that some other property was going to be purchased would not be a proper purpose which could bind the reversioners.
2. The Subordinate Judge dismissed the plaintiffs’ claim on the ground that the plaintiffs’ father attested the sale-deed and the plaintiffs’ uncle wrote and asked the 1st respondent to buy the property. Following the decision in Beni Ram v. Kundan Lal [1899] 21 All. 496 he held that the vendee acquired the full title to the property. I am unable to accept the contention that the plaintiffs are in any way estopped from disputing the validity of the alienation. If a person who is the owner of some property stands by and allows another person to sell the property as his he would be estopped from afterwards setting up a claim to the prejudice of the alienee. The question, therefore, resolves itself into this: Had Ramanatha Sastri or Vanji Sastri on the date of sale any vested interest in the property? It was only a reversionary interest. They could not have parted with their right which was only spes successionis. The mere fact that they stood by and asked another person to purchase the property would not in any way estop them from setting up a claim as the purchaser knew what the terms of Ex. I were. When parties deal with eyes open they cannot be said to be decived by anything which another party to the transaction did. I think the observations of Mr. Justice Batchelor in Ranchodlal Vandravandos v. Secretary of State [1911] 35 Bom. 182 applies to this case:
As appears from the language of Section 115 of the Evidence Act itself and as was observed by Sir Charles Farren, J., in Honappa v. Narsappa [1899] 23 Bom. 406 when both parties are equally conversant with the true state of the facts it is absurd to refer to the doctrine of estoppel.
3. Here the 1st defendant knew the contents of Ex. I. Therefore he must have known that Mangalammal had only a life interest in the property.
4. The mere, fact that he would be a reversioner or memher of the donor’s family asked him to buy the property because Mangalammal could not enjoy the property conveniently would not in any way be sufficient to create estoppel in favour of the 1st defendant against the plaintiffs or even against Ramanatha Sastri or Vanji Sastri. Mr. Rama natha Aiyar for the respondents very strongly urges that inasmuch as the expression used in the doctrine: “If you have no male issue then the aforesaid lands shall revert to our heirs.” It must be understood that the persons in being at time were intended. The words” our heirs” denote not a definite class but a very indefinite class. Therefore the English cases which refer to children, sons or daughters would not apply to the expression “our heirs.” The heirs may be sons, grandsons, great-grandsons, or it may be great-great-grandsons, if Mangalammal happens to live very long. I do not think therefore that the decision in Hickling v. Fair [1899] A. C. 15 applies to the present case.
5. It was also sought to be argued by Mr. Ramanatha Aiyar that the clause that the male issue alone shall inherit the property is bad, and therefore it must be taken that Mangalammal was given property to enjoy during her lifetime and the donor’s family had a vested interest in the property. As the Hindu Law stands at present it is not at all illegal to give or to bequeath property to persons who would be in being before the expiry of the life estate. Therefore the clause in favour of the male issue of Mangalammal was not illegal.
6. In the result I allow this second appeal but considering the conduct of the plaintiffs and their father I think they should not be given costs of this appeal or of the appeal in the lower appellate Court. The appellants will have mesne profits from the date of the plaint at the rate found by the Subordinate Judge.
