Kapur, J.
1. This is a defendant's appeal against a judgment and decree of Mr. Hira Lal Jain, Subordinate Judge First Class, Amritsar, dated 2-3-1951, decreeing the plaintiff's suit for possession by partition of the property in dispute with costs.
2. The following pedigree-table will be helpful in understanding the facts of the case:
GHANIJIYA LAL
_____________________|_________________
| | |
Jai Singh Sundar Singh Hira Singh
| alias Shori Singh |
| | |
Mt. Indar Kaur=Ram Singh | |
(widow deceased) Har Kaur=Jiwan Singh |
(widow) (adopted son) |
(Deft. 2) | |
Kirpal Singh |
(Deft. 1) |
_________________________________________|_____
| | | |
Hukam Lorind Singh Uttam Singh Harnam Singh
Singh (Deft. 5) (Deft. 4) (Deft. 3)
|
Gurbachan Singh
(Deft. 6)
3. The property in dispute belonged to Ram Singh, grandson of Ghanhiya Lal. On his death about forty years before the suit his widow Mst. Indar Kaur succeeded to the estate and she died on 27-3-194f By three sale deeds (Exs. P. 2, P. 3 and P. 4) Jiwan Singh son of Sundar Singh 'alias' Shori Singh sold his rights of expectancy in regard to the estate which was in possession of Mst. Indar Kaur to Jiwan Singh, adoptive father of plaintiff Gurbaksh Singh, as follows:
4. On 15-2-1914 Jiwan Singh sold half of his rights as a reversioner for a sum of Rs. 925/-and it is stated in this sale deed:
'I have therefore of my own accord absolutely sold all the rights relating to the one-half of the one-half share of the entire property which I expect to get after the death of Mst. Indar Kaur, widow of Bhai Ram Singh, for a eon side ration of Rs. 925/-.'
5. On 13-9-1914 by document (Ex. P. 3 at page 45 of the printed paper book) Jiwan Singh sold for a sum of Rs. 400/- one-quarter and by Ex. P. 4 dated 21-9-1914 he sold the remaining one-quarter of his reversionary rights in almost identical language to Jiwan Singh, adoptive father of plaintiff Gurbaksh Singh.
6. Jiwan Singh, the vendee of the reversionary rights, died on 28-10-1944. There arc seven properties in dispute out of which properties 'A' to 'D' and 'F' as given in the plaint are situate in Amritsar and 'E' at Jagroan in the district of Ludhiana. Defendants 3, 4, 5 and 6 sold their half share in these properties to defendants 7 and 8 and the other half was sold by Kirpal Singh son of Jiwan Singh to Mad an Lal Ram Gopal on 7-10-1947 and on 17-10-1948 Ram Gopal and Dula Singh defendants 7 and 8 purchased the other half from Madan Lal - Ram Gopal and thus they claimto have become the owners of the whole of the property in suit.
The plaintiff has brought a suit for possession by partition of the half share of the entire property and for rendition of accounts relating to the income of the. entire property us from 27-3-1944 up to the date of the suit which was 24-1-1950.
The plaintiff has alleged that Jiwan Singh sold all his rights which he expected to get on the death of Mst. Indar Kaur for a valid consideration by three deeds of sale which I have already given and that the defendants were not allowing the plaintiff the full benefit of his share and therefore he claims partition of the property by metes and bounds and separate exclusive possession of his half share thereof.
He has also alleged that he was in possession of a portion of the property in dispute and was 'co-sharer in the rest'.
7. The defence was that the plaintiff was not in possession of any portion of the properly and therefore the suit was defective in form and the value of the suit had not been correctly fixed nor had the court-fee been properly paid. It was also pleaded that the plaintiff had no right to sue as all he purchased was a 'spes successions which is illegal. The defendants also pleaded estoppel. After replication the Judge stated several issues. The value of the property in suit as determined by the Commissioner is Rs. 56,350/- but it appears that the objection regarding court-fee was given up by counsel for defendants 7 and 8.
8. The trial Court found that the plaintiff was in exclusive possession of a portion of the property, that he was owner of the half, that the transfer of the property in favour of Jiwan Singh by Jiwan Singh, adopted son of Shori Singh, was valid, that the plaintiff was not estopped by his conduct and he was entitled to accounts & that the share of the plaintiff and the defendants is half and half. The defendants have come up in appeal to this Court.
9. The first question to be determined is as to the applicability of the rule in the Full Bench decision of the Lahore High Court in -- 'Asa Ram v. Jagan Nath', AIR 1934 Lah 563 (FB) (A), where it was held that if the plaintiff alleges that he is in joint possession and the Court finds that allegation to be untrue then ordinarily the suit will be dismissed solely on the ground that the plaintiff being out of possession is not entitled to sue for partition without asking for possession of the property in dispute, and reference was there made to the judgment of Rankin C. J. in -- 'In re Nandela Mukherji', AIR 1932 Cal 227 (B).
The possession of the plaintiff is based on his claim that he is in possession of a partition of House No. 1229/8 in Kucha Candanwala, Namak Maudi, Amritsar, through a tenant Mohan Singh P. W. 1 and through Sham Singh P. V. 3 who is a tenant of a portion of the same house in the groundfloor and it was admitted by him that the rest of the house is in possession of defendants 7 and 8. (His Lordship discussed the evidence on the point and proceeded:)
10-12. From this evidence I am unable to conclude that the plaintiff is in possession of a portion of the property. The property in dispute was in possession of the receiver from 16-10-1945 to 22-6-1918 when possession was delivered to defendants 1, 7 and 8 which is shown by the statement of Amin Chand Khanna, Official Receiver, Amritsar, D. W. 3. I am of the opinion therefore that the evidence of possession of the plaintiff is very meagre and is insufficient to sustain the finding given by the learned Judge that the plaintiff is in possession of the portion which he claims heis in possession of and as he is not in possession of any property and his suit is for partition it should on the rule laid down in 'AIR 1934 Lah 563' (A) be dismissed.
But plaintiff's counsel submitted that really it is a suit for possession and not merely for partition. If that was so, the sole dispute should have been confined to the amount of court-fee payable and not whether the plaintiff is in possession at all. In my opinion the rule is applicable and the suit should be dismissed on that ground alone.
13. The second question that arises for decision is as to what was sold to the plaintiff and whether the plaintiff has any right to claim possession, In the suit as laid it is alleged that Jiwan Singh purchased from Jiwan Singh son of Sundar Singh a right of expectancy which is clear from the averments in para, No. 4 of the plaint which I quote in extenso':
'Jiwan Singh referred to in para, No. 3 above absolutely sold all his rights which he expected to Ret on the death of Shrimati Indar Kaur, widow of Ram Singh aforesaid, pertaining to property, detailed in the heading above for lawful and valid consideration by means of three sale deeds in favour Sardar Jiwan Singh, father of the plaintiff, as detailed below:
One fourth share (1/2 share of 1/2 share) of the entire property in suit by means of sale deed dated 15-2-1914, registered on 16-2-1914, in lieu of Rs. 925/-, one-eighth share (1/2 share of the remaining share) by means of sale deed dated 13-9-1914, registered on 17-9-1914, in lieu of Rs. 400/-and one-eighth share (his remaining share) by means of sale 'deed, executed and registered on 21-9-1914, in lieu of Rs. 400/-.
Thus Jiwan Singh, father of the plaintiff-aforesaid became the sole-owner of the share of theproperty of Jiwan Singh, son of Sundar Singh. SardarJiwan Singh, father of the plaintiff, died in 1921.The contesting plaintiff is Iris only son, heir andrepresentative. All the three sale deeds are attached herewith.'
There is no other claim in the plaint as far as I can see. In the replication also the position taken in the plaint in regard to the sale of expectancy is reiterated. Plaintiff's advocate made a statement on 21-12-1950 where he said:
'The transfer of one-half share of the house in dispute was made by Jiwan Singh son of Sundar Singh in favour of Jiwan Singh adoptive father of the plaintiff, in the year 1914, during the lifetime of Indar Kaur but after the death of her husband Ram Singh.'
Thus at no stage of the pleadings was it the case of the plaintiff that anything more than a mere right of expectancy had been transferred to the plaintiff or his predecessor-in -interest.
14. Thus what was transferred was a right of expectancy or 'spes successionis' which both in accordance with the principles of Hindu Law as well as under the Transfer of Property Act, Section 6(a) is non-transferable. But then it is contended in appeal before us that the Transfer of Property Act is not applicable to the Punjab and even though a right of expectancy may not he transferable the contract becomes enforceable in equity on the estate vesting in the transferor of the rights of expectancy if the transfer is for consideration. Several cases were relied upon but I am unable to hold that this is so.
15. As this is a question of some importance it is necessary that the law relating to this should be discussed at some length. It is true that the Transfer of Property Act is not applicable to the Punjab but even the Lahore Judges were not inaccord as to what is exactly the meaning of this, but there is no disagreement as to the principles of the Transfer of Property Act being applicable to the Punjab because they are based on justice, equity and good conscience.
It is only the rules of procedure which are not applicable. See -- 'Punjab National Bank Ltd. v. Jagdish Sahai', AIR 1936 Lah 390 (C), In some cases it had been held that it is the rules laid down in the Act as amended in 1929 which are applicable; see -- 'Tulsi Ram v. Thakar Dass Madan Mohan Lal', 38 Pun LR 76 (D). In -- 'Kader Moideen v. Nepean' 25 Ind App 241 (PC) (E), it was contended before the Privy Council that the principles of the Transfer of Property Act should be followed in preference to English practice. As to this the Privy Council said that they were not prepared to dissent from this contention, but they expressed no final opinion on this.
16. The rule as to the inalienability of expectancy interests was laid down by the Privy Council in -- 'Sham Sunder Lal v. Achhan Kunwar', 25 Ind App 183 at 189 (PC) (F) where Lord Davey said that such a reversioner could not by Hindu Law make a disposition of or bind his 'expectant interests' or his 'future rights.' Relying on this pronouncement Maclean C. J. and Banerjee in -- 'Nund Kishore Lal v. Kanee Ram Tweary', 29 Cal 355 (G), were of the opinion that the interests of a Hindu, reversioner expectant upon the death of a Hindu female could not be validly mortgaged.
Delivering the judgment of the Privy Council in -- 'Venkatanarayana Pillai v. Subbammal', AIR 1915 PC 124 (H), Mr. Ameer Ali was of the opinion that although on the death of a female owner inheritance to the reversioner opens out and the one most nearly related to the last full owner becomes entitled to possession but in her lifetime the reversionary right is a mere possibility or 'spes successionis'.
17. In -- 'Amrit Narayan v. Gaya Singh', AIR 1917 P.C. 95 at p. 97 (I) Mr. Ameer Ali observed that a Hindu reversioner during the lifetime of a female owner holding a life estate has no right or interest in 'praesenti' and he has nothing to assign or to relinquish or to transmit to his heirs.
His right becomes concrete only on her demise; until then it is mere 'spes successionis', andif he is a minor his guardian cannot bargain withit on his behalf or bind him by any contractual engagement in respect thereto. This question arosein the following circumstances. On the death without issue of a Hindu leaving a widow, a daughterand his daughter's son a minor, the widow obtained possession of her husband's property againstthe opposition of the agnates. On her death a dispute arose with the agnates as to the right of thedaughter to succeed.
The matter was referred to arbitration, but before the arbitration took place a compromise was entered into in which the husband of the daughter acted for her and her infant son the effect of which was to completely extinguished the reversionary interest of the minor in regard to his grandfather's estate, and an award was made in accordance with the compromise and a decree was made in spite of the opposition of the daughter.
The daughter died and after her death the minor son brought a suit to set aside the arbitration proceedings together with the compromise and award as being fraudulent and for a declaration that he was not bound by them, and it was held that until the death of the daughter the minor son had no right or interest in the property which could be the subject of bargain.
Relying on these judgments the Division Bench in -- 'Annada Mohan Roy v. Gour Mohan Malik', AIR 1921 Cal 501 (2) (1) held that the interest of A reversioner under Hindu Law is a mere chance of succession and cannot form the subject of any contract, surrender or disposal. At pp. 503, 504 Mookerjee A. C. J. observed as follows:
'We must accordingly take it as settled by the decisions of the Judicial Committee that the interest of a Hindu reversioner is an interest expectant on the death of a qualified owner; it is not a vested interest it is a 'spes successions' or a mere chance of succession, it cannot be sold, mortgaged, assigned or relinquished, for a transfer of a spes successions is a nullity and has no effect in law.'
Continuing the learned Judge again said at p. 504;
'There can, in our opinion, be no doubt that according to the decisions of the Judicial Committee, so long as the estate is vested in the female heiress, the interest of the re version et is a mere chance of succession which cannot form the subject of any contract, surrender or disposal. This view is now generally accepted in nearly all the Indian High Courts.'
And then the learned Judge has given a list of cases where this was followed. The learned Judges then considered the effect of Section 6 of the Transfer of Property Act and also the English cases--'Holroyd v. Marshall', (1861) 10 HLC 191. (K), and-- 'Tailby v. Official Receiver', (1888) 13 AC 523 (L), and at p. 548 the learned Acting Chief Justice referred to the doctrine that though the assignment was of a defective title, yet as the assignor afterwards acquired a good title, the Court would make that good title available to make the assignment effectual, and observed-
'But this principle plainly has no application where the contract of assignment refers to property which has been expressly rendered inalienable by the Legislature.'
18. In this very case AIR 1921 Cal 501 (2) (J), the learned Judges after referring to various Hindu Law tests said at p. 509:
'The Hindu Jurists do not appear to have evercontemplated the transfer of mere chance, or possibility of succession, which, as is abundantly clear from numerous passages of the Dayabhaga, was not property (Dayabhaga, Chap. 1, paras. 13, 14, 15, 18, 19, 28, 30, 38, 39 and 42). These passages show that the expectant interest of a son, in other words, what has been called, not very felicitously; 'the inchoate right of inheritance created by birth' is not property; while the father lives, no property is vested in the sons, and they have no ownership which could form the subject of partition which is in essence a form of alienation.
There is thus no ground to hold that the claim of the plaintiff, tested by Hindu Law, apart from the provisions of Section 6, T. P. Act, can be seriously entertained.'
Thus it is quite clear that neither under Section 6(a), T. P. Act nor under the provisions of Hindu Law, apart from the provisions of the Transfer of Property Act, is such a right alienable, or transmittable, nor can it form the subject-matter of a valid contract, and if it cannot form the subject-matter of a contract it cannot be enforced.
19. This case -- 'Annada Mohan Roy v. Gour Mohan Mullick was taken to the Privy Council' and is reported as AIR 1923 PC 189 (M) and the judgment of the Calcutta High Court was uphold. After referring to -- 'Harnath Kaur v. Indar Bahadur Singh', AIR 1922 PC 403 (N), their Lordships posed the question (at p. 192) whether, either under the Transfer of Property Act or under the Hindu Law applying to purchases of expectations of inheritances, there is any ground upon which these contracts can besupported, and their Lordships answered this question in the following words at the same page-
'Dr. Abdul Majid has developed these points, and his points appear to be two, setting aside for the moment the Transfer of Property Act, upon the ground that it deals with an actual transfer or conveyance and not with a contract to transfer. It is contended that there is nothing in the reason of the thing to prevent two parties, who are concerned in the way in which these parties were concerned, from entering into a contract for the future sale of future expectations. It is admitted that there is no authority to be found anywhere which supports the view that such a contract is possible.'
No doubt it is true that a reference was then made to two cases which dealt with the prohibition under the Transfer of Property Act, but in my opinion it cannot be said that the Privy Council has in any way disagreed with the Calcutta High Court in regard to such contracts being unenforceable under Hindu Law or have cast any doubt on what was stated by the Board in AIR 1922 PC 403 (N).
20. Reference may now be made to AIR 1922 PC 403 (N). In that case a Hindu reversioner got a decree declaring that a will authorising the widows of the last male holder of an Oudh estate to adopt, was invalid. Prior to this he purported to sell half the estate in consideration of Rs. 25,000/-advanced to him and the sale deed declared that when he (the reversioner) succeeded he would put the vendee in possession. After the death of the widows and the death of the vendee, the latter's widow brought a suit for possession or in the alternative to recover the money.
It was held that there was no effectual transfer since the vendor had only an expectancy but that the money advanced could be recovered. At p. 404 Sir Lawrence Jenkins, after referring to the finding of the Courts below that such a transfer was inoperative as at its date the rcversioner had no interest capable of transfer but merely an expectancy, said:
'It cannot be disputed that, according to the ordinary Hindu Law, this is the true view.'
And the widow did not succeed in getting possession of the half estate although the reversioner had come into possession but a decree for the return of the money advanced was given by the Privy Council applying Section 65, Indian Contract Act.
21. In -- 'Bhana v. Guman Singh', AIR 1918 AH 184, (O), it was held that an agreement by which the rcversioners of a Hindu widow agreed not to force their right to sue for a declaration that a gift of property made by the widow was not binding upon them, did not require compulsory registration At p. 185 the Court said that the revorsioners had no transferable right, title or interest in the property during the lifetime of the widow. This was a case under Hindu Law and no mention is made of the Transfer of Property Act.
22. I shall now deal with cases which have arisen in the Punjab. The earliest case to which reference may be made is -- 'Tota v. Abdulla Khan', 66. Pun Re 1897 p. 298 (P). Chatterji J. in his referring order at p. 302 said that mere possibilities of succession are not capable of alienation but sales of them are not illegal, and at p. 304 he said that under Hindu Law the interest of a rcversioner is not capable of alienation and he referred to --'Koraj Koonwar v. Komul Koonwar', 6 Suth WR 34 (Q); -- 'Ram Chandra Tantrodas v. Dharmo Narain Chukerbutty', 15 Suth WR 17 (FB) (R) and -- 'Ram Achhan Kuar v. Thakur Das', 17 All 125 at pp. 132 and 150 (S). Sir Charles Roe C. J. gave the leading judgment and ho said that no outsider could be introduced to challenge an alienation made by a widow and therefore the right of a reversioner to alienate his right of successioncould not be transferred to an outsider, nor could such an outsider challenge a widow's alienation.
The learned Judge also said that the principles of Hindu Law have some bearing on the point as also the principles which underlie the Transfer of Property Act, and Reid J. specifically held that the principles contained in Section 6(a), Transfer of Property Act embodied the spirit of the customs which limit the powers of alienation in the Province, and Clark J. was of the opinion that, the power of a reversioner to transfer his reversionary right is opposed to the principle of Tribal Law of the Punjab, and the exercise of the power, at least 'till recent times, is almost unknown'. The Court therefore dismissed the suit of the alienee of reversionary rights who had challenged the alienation made by the widow in possession.
23. In -- 'Malik Ala Bakhsh v. Ghulam' 13 Pun Re 1899 (T), a Division Bench of the Lahore High Court held that though the sale of a reversionary right of succession did not at the time that the sale took place affect a transfer of property but it gave rise to a right which the Courts would enforce as inheritance had fallen into possession on the well known rule of equity which treats everything as done which had been agreed to be done, but this being an old case naturally could not take into account the law as laid down by the Privy Council in AIR 1922 PC 403 (N) and if the transfer of Property Act embodies the principles of justice, equity and good conscience it cannot be said that such a contract would be enforceable.
24. The next Punjab case on this point is --'Jwala Sahai v. Ram Singh', 67 Pun Re 1909 (U), where it was held that a reversioner's right to contest an alienation under Customary Law is not transferable to a stranger and where a reversioner who succeeds after the death of a widow, alienates his reversionary rights, the alienee has no status to contest the validity of mortgages made by the widow, and the Full Bench decision was followed.
25. The contrary view was taken in -- 'Gujar v. Auliya' AIR 1914 Lah 460 (V), by a Division Bench but that was a case where transfer was by one reversioner of his right of expectancy to another reversioner, and it was held that this transfer is not void, but that question does not arise in the present case. Moreover, this case seems to have been decided on its own facts and is no authority for the proposition which was debated before us.
26. In -- 'Indar Singh v. Munshi', AIR 1920 Lah 123 (2) (W), it was held at p. 124 that mere reversionary rights cannot he alienated and that an agreement to transfer such rights does not require registration as it does not itself create any rights at all.
27. In -- 'Gurbhaj v. Lachhman', AIR 1925 Lah 341 (X), a Letters Patent Bench hold that the right of succession on the death of a widow in Hindu Law is a mere 'spes successionis' & the reversioner has no right or interest in the property 'in praesenti', and therefore a deed relinquishing the right of succession does not require registration. Sir Shadi Lal C. J. referred in this case to AIR 1917 PC 95 (I), and 'AIR 1922 PC 403 (N)'. At page 342 Sir Shadi Lal C. J. observed:
'The transfer of a 'spes successionis' does not carry with it any interest in immovable property, and the deed evidencing such transfer does not stand in need of compulsory registration.'
28. 'Acchar etc. v. Padmun etc,', L. P. A. 87 of 1924 (Lah) (Y) was also relied upon by the respondent; but in that case also it was held that the right of an expectant heir to succeed to an estate is a mere spes successions and cannot be the subject-matter of an assignment, but following the judgment of the Chief Court in 13 Pun Re 1899(T); it was held that a contract of this kind gives rise to a right which the Court will enforce under Section 18, Specific Relief Act when the inheritance falls into possession.
29. Reference may now be made to -- 'Thakar Singh. v. Mst. Uttam Kaur', AIR 1929 Lah 295 (Z) where it was held that the right of expectancy cannot be the subject-matter of a valid transfer so as to invest the transferee with a right to sue and that the principle contained in Section 6(a) T. P. Act embodies in this respect the spirit of the customs prevailing in the Punjab. 66 Pun Re 1897 (P), was relied upon at p. 302; and the Privy Council cases, which I have, mentioned above, were also referred to.
30. Another Division, Bench of the Lahore High Court in -- 'Sher Mohammad Khan v. Chuhr Shah', AIR 1936 Lah 753 (21), held that the sale of reversionary rights in a widow's estate is opposed to the principles of Customary Law, and according to the principles of Section 6, Transfer of Property Act which can be taken as a guide, though the Act is not in force in this Province, such a transfer is void.
31. I may here refer to two Punjab cases which though not dealing with transfer of a right of expectancy dealt with rights which are contained in Section 6, T. P. Act. In -- 'Tara Chand v. Bakshi Sher Singh', AIR 1036 Lah 944 (72.), it was held that though the Transfer of Property Act does cot apply to the Punjab, the general principles based on the judgments of Equity Courts can be invoked in aid by the Courts in this Province and the principle of Section 6(dd) which bars a transfer of a right to future maintenance is applicable to the Punjab.
32. In -- 'Hukam Singh v. Narinjan Singh', AIR 1937 Lah 934 (Z3), it was held that a right to take accounts and to recover such sums as may be found due is not assignable being a mere right to sue within the meaning of Section 6, Clause (e), T. P. Act, and the assignee is therefore not entitled to maintain a suit for Such a purpose; and reliance was placed on -- 'Khetra Mohan Das v. Biswanath', AIR 1924 Cal 1047 (Z4).
33. I would therefore hold that by deeds Exs. P. 2 to P. 4 of the year 1914 Jiwan Singh purported to sell his right of expectancy which is not transferable, assignable, transmittable and cannot be the subject-matter of a contract at the date of the transfer. As was held in AIR 1922 PC 403 at p. 404 (N), Jiwan Singh had no interest which was capable of being transferred, and this is apart from the provisions of the Transfer of Property Act.
34. The respondent then submitted that there is another track of decision which becomes applicable to this case and which starts with 13 Pun Re 1899 (T), I have already discussed this case. What was held there was that although sale of reversionary rights passes no interest yet when the estate falls into possession the vendee can enforce his rights under Section 18, Specific Relief Act. This rule was followed by Beadon J. in -- 'Attar Chand v. Umar Hayat', 20 Ind Cas 556 (Lah) (Z5); but it appears that it was nothing more than obiter.
35. In -- Arur Singh v. Tockr Mal', AIR 1919 Lah 319 (26) the contract by the reversioner was that the reversiouer intended to sue for the cancellation of a sale by a widow in possession and that on being successful he would give possession, of half the land to the plaintiff and get a sale deed registered. It was held that the alienee may be entitled to sue for a specific performance on the death of the widow but he had no cause of action to bring the suit during her lifetime because the contract itself did not create any interest in or charge on the property.
36. 'Mt. Bhagwati v. Mt. Chaolli', AIR 1920Lah 74 (Z7) was then referred to where it was also held that a contract of sale of reversionary rights can be enforced when the estate falls into possession. The learned Judges relied upon Section 43, Transfer of Property Act although they did not give full effect to Section 6 of the same Act. The case was decided on the ground that any interest subsequently acquired by the transferor with a defective title is available to make the transaction effectual when the title is perfected.
37. Counsel next relied on -- 'Naranjan Singh v. Dharam Singh', AIR 1930 Lah 928 (28) where it was held that an agreement to sell a reversionary right of succession can be enforced in the Punjab when the inheritance falls into possession and although AIR 1923 PC 189 (M) was referred to it was distinguished on the ground that the Transfer of Property Act .was not in force. This was a judgment by Broadway J. with whom Carrie J. agreed and 13 Pun Re 1899 (T), was followed.
38. Another judgment which was relied upon is a Single Bench by Currie J. in -- 'Gobinda v. Chanan Singh', AIR 1933 Lah 378 (Z9), where the same proposition was laid down.
39. In -- 'Kishan Singh v. Mst. Lachhmi', Second Appeal No. 1310 of 1947 (Lah) (210), it was contended by counsel that a transfer of this kind could not be allowed to operate, but the learned Judges contented themselves by saying-
'This contention is completely answered by another decision of the Lahore High Court, namely, AIR 1930 Lah 928 (Z8)',
and that such a transaction gives rise to a right which the Courts will enforce when the inheritance falls into possession and such a contract is enforceable in a Province where the Transfer of Property Act is not in force.
40. Reliance was also placed by counsel on two judgments of Pipon T. C. of the Peshawar Court. The first one is -- 'Kabal Shah v. Muhammad Baqa', 73 Ind Cus 120 (Posh) (Z11), where it was held that Section 6, T. P. Act is not a bar to a suit for specific performance, and the second is -- 'Zabta Khan v. Said Habib', 75 Ind Cas 246 (Pesh) (Z12), where it was held that a transfer of reversionary rights may be valid as an executory contract which will take effect when a title to the property has opened out to the vendor both by a rule of equity and by the application of Section 18, Specific. Relict Act.
41. A Travancore case -- 'Chacki Thomas v. Mathai Abraham', AIR 1954 Trav-C 357 (Z13), was then cited and it was held there that an agreement to convey property to be acquired in the future is enforceable in spite of Section 6, T. P. Act. The Punjab cases that I have already given were relied upon as also a judgment of Buckley J. in 'In re, Ellenborough Towry Law v. Burne, (1903) 1 Ch 697 (Z14).
42. Two English cases were cited before us by the respondent's counsel in (1903) 1 Ch 697 (Z14). What was held in this case was that a volunteer cannot enforce a contract of an assignment of an expectancy even though under seal, but the learned Judge added-
'It cannot be and is not disputed that if the deed had been for value the trustees could haveenforced it. * * * *
* * * * * * * ** Future property, possibilities and expectancies are all assignable in equity for value.'
The case referred to by Buckley J. was relied upon by Mr. Faqir Chand Mital and that case is (1838) 13 AC 523 (L) in which it was held that a right to sue for accounts is assignable in equity, which is contrary to the view taken even in the Punjab in AIR 1937 Lah 934 (Z3).
43. This track of decisions is in my opinion not available to the plaintiff in the present case. In the first place the suit is not for specific performance, and if it had been, many other defences might have been open, to the defendants. In any case, the suit being only for possession on the ground that there was a sale of expectancy in favour of the plaintiff's predecessor-in-interest, the cases starting with 13 Pun Re 1899 (T), have no applicability.
44. And secondly the Privy Council cases in AIR 1922 PC 403 (N) and AIR 1923 PC 189 (M), show that if the right of expectancy is not alienable and cannot form the subject-matter of a contract, such a contract would be unenforceable as was held in AIR 1921 Cal 501 (2) (J) where it was said at p. 509:
'There is thus no ground to hold that the claim of the plaintiff, tested by Hindu law, apart from the provisions of Section 6 T. P. Act, can be seriously entertained.'
And this judgment was affirmed by their Lordships of the Privy Council.
45. Besides, if this agreement was allowed to be enforced it would be defeating the Hindu Law because it would come to this that although expectations cannot be transferred in praesenti or in futuro; a person may bind himself to bring about the same result by giving to the agreement the form of a promise to transfer nor the expectations but the fruits of the expectations by saying that what he has purported to do may be described in different language from that which the law has chosen to apply to it for the purpose of condemning it. When the law refuses the transaction as an attempt to transfer a chance, it indicates the true aspect in which it requires the transaction to be viewed. I have taken these words from the judgment of Tyabji J. in -- 'Jagannada Raju v. Varada Lakshmi Naresimha Rao', AIR 1916 Mad 579 at p. 581 (Z15). Only I have substituted the word 'law' for the word 'Legislature' and the word 'Act'. This observation has received the approval of the Privy Council in AIR 1923 PC 189 (M).
46. I would hold therefore that the present is neither a suit for specific performance nor can the agreement he specifically performed in the present case.
47. I would therefore allow this appeal, set aside the decree of the trial Court and dismiss the plaintiff's suit with costs throughout.
Khosla, J.
48. I agree.