Patkar, J.@mdashThis was a suit brought, by the plaintiffs to recover possession of the plaint property on the ground that it belonged to one Murari and after his death to his wife Zinga, that Zinga died and the property was inherited by Am who died on 4th February 1924, and that the plaintiffs as the stepsons of Anu are entitled to succeed to Murari.
2. It appears that on 23rd May 1921, the widow Zinga and her surviving daughter Anu, the only reversioner then living, passed a deed of gift in favour of Tukaram, the present defendant 1. The other defendants are alienees from defendant 1.
3. Both the lower Courts held that the gift by Zinga with the consent of Anu of the whole of the property which was inherited by her from her husband in favour of defendant 1 was valid, and that the plaintiffs were estopped from disputing the validity of the deed of gift in favour of defendant 1.
4. After the decision of the learned Assistant Judge a review application was filed and it was held that the property which, was the subject matter of the deed of gift in favour of defend in 1 did not comprise the whole of the property which, was inherited by the widow, and therefore the doctrine of surrender would not validate the transaction in favour of defendant 1. The learned Judge was of opinion that his view on the question of estoppel was sufficient to defeat the plaintiffs'' claim.
5. It is not necessary in this second appeal to go into the question as to whether the deed of gift, even if it were of the whole of the property inherited by Zinga, was valid. In the case of Tukaram v. Yesu AIR 1931 Bom. 100 it was held that the gift of the whole or even of apart of the property inherited by the widow in favour of third person with the consent of the next reversioner would not be valid, but the gift may be binding on the consenting reversioner on the ground of estoppel as held in Baspapa v. Fakirappa AIR 1922 Bom. 102, or on the ground of election accepted in the case of Akkawa v. Sayadkhan Mithekhan AIR 1927 Bora. 260, Fateh Singh Rukmini Ramanji Maharaj AIR 1923 All. 387 and
In the present case the plaintiff actually joined in the deed by which the property is question was alienated. That if, I think, a clear lection to hold the transaction as valid. That being so, in my judgment it makes no difference whether in such a case of election, the part electing was a mule or was a female. A reversioner whether male or female could bring an action in the lifetime of the widow to set aside an alienation alleged to be invalid. If that is so and he or she can thus elect to challenge a transaction as invalid, then surely it follows that he or she may also elect to hold that deed as valid. I think it must also be conceded that an election testified by actual joinder in a deed of alienation must be at least as good as any act of ratification or sanction given after that deed of alienation.
6. In the present case, Aim, the only presumptive reversioner, joined the widow Zinga in passing a gift deed in favour of defendant 1. The Full Bench decision therefore of this Court is an authority for holding that Anu elected to hold the deed of gift as valid, and therefore she could not be allowed to resile from that position, and if Anu is capable of disputing the validity of the deed of gift in favour of defendant 1, it would follow that her stepsons who stand in her shoes are similarly precluded from disputing the validity of the deed of gift. The same view was taken by the Full Bench of the Madras High Court in
It is settled law that an alienation by a widow in excess of her powers is not altogether void but only void able by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.
7. We think therefore that having regard to the recent decisions of the Privy Council and of the Full Benches of the different High Courts, it is now settled law that the reversioner who consents to an alienation, whether it be an alienation without necessity or a deed of gift, is precluded from disputing the validity of the transaction. This principle is described as estoppel in Basappa v. Fakirappa AIR 1922 Bom. 102 and is based in the later cases either on ratification or election to hold the transaction as good. It is difficult to apply the principle of estoppel to a transaction such as the present, namely the deed of gift, as it cannot be said that the donee has done anything to his detriment on account of the conduct of the reversioner in consenting to the deed of gift. I think that Anu in the present case was precluded from disputing the validity of the deed of gift in favour of Tukaram on the ground of election to treat the transaction as valid if not on the ground of estoppel. The present plaintiffs are the stepsons of Anu and are not the reversioners of Murari. They stand in the shoes of Anu, and if Anu was precluded from disputing the trans action in favour of defendant 1, they cannot stand on a higher footing then that of Anu, and they similarly are, in my opinion, precluded by the conduct of Anu from disputing the validity of the transaction in favour of defendant 1.
8. On these grounds 1 think that the view of the lower Court is right and this appeal must be dismissed with costs.
Baker, J.
9. I agree. I think the case is covered by the decision in Akkawa v. Sayadkhan Mithekhah AIR 1927 Bora. 260 and the decision of the Privy Council in Ramgouda Annagouda v. Bhausaheb AIR 1931 Bom. 100.
