P (PLP)

S. A. RAHMAN, J.‑--This order will dispose of a regular second appeal arising out of a pre‑emption suit brought on behalf of Allah Ditta, plaintiff‑respondent, against Lai Khan, appellant, which was decreed by the trial Court, the decision being affirmed on appeal by the learned Additional District Judge, Gujrat. For understanding the contentions raised by the parties before me it is necessary to set out the following facts which are not disputed. One, Umra, was originally the owner of the property in suit. He was survived by his son, Rahmat, and on the latter's death, the property devolved on Mst. Rani, widow of Umra and was mutated in her name. When Mst. Rani died, the appellant Lai Khan claimed that his predecessor‑in‑interest had gifted the suit land to Umra's grandfather and as the donee's line had become extinct, the property had reverted to him along with the other descendants of the original donor. This contention was apparently accepted by the revenue authorities and mutation followed in favour of the appellant, his brother, Sardar Khan, and his cousin, Ghulam Ali. One Hayat, claiming to be a collateral of Umra, appealed to the Collector against the sanctioning of the mutation. His appeal was dismissed. Hayat then filed a declaratory suit in the Civil Court claiming ownership of the property. He succeeded in the trial Court. On appeal by Lal Khan, the learned District judge remanded the case as it was revealed that Fateh Muhammad, who may be interested in the property, had not been joined as a party. Fateh Muhammad incidentally is the father of Allah Ditta, plaintiff‑respondent. After the remand, Hayat allowed the case to be dismissed in default without impleading Fateh Muhammad as a party to the litigation. Lai Khan then obtained two deeds from Fateh Muhammad, purporting to be sale‑deeds of the suit land, each in lieu of ifs. 99 and each pertaining to half the property in suit. Lai Khan did not rest content with the execution of these documents but brought a declaratory suit against Fateh Muhammad on the basis of these sale‑deeds and got a decree declaring him to be owner of this property. It was this sale which was sought to be pre‑emoted on behalf of Allah Ditta minor who sued through Hakim Ali as his next friend. The suit was keenly contested on behalf of Lal Khan who raised several defences. The learned trial Sub‑Judge held that Lal Khan could not be allowed to resile from the position which he took up in his own declaratory suit that the two sale‑deeds in question must, therefore, be regarded as conveying the property by way of sale to Lal Khan by Fateh Muhammad; that the land involved in the present litigation was the same as formed the subject of the declaration in favour of Lal Khan; that the two sale‑deeds had been deliberately withheld by the appellant or that, in any case, they had been lost and therefore, the pre‑emptor was free to produce secondary evidence of the sale ; that even if the original sale‑deeds were insufficiently stamped, the plaintiff pre- emptor could rely orb the factum of the sale apart from the deeds themselves as a decree had been obtained on the basis of the sale‑deeds ; that the pre emptor could redeem the land which was under mortgage, if he succeeded in suit ; that the suit was not collusive ; that the plaintiff had a superior right of pre‑emption ; that the sale‑price of Rs. 200 was actually paid for the equity of redemption and that this was not a case of partial pre‑emption. In consequence of these findings, he decreed the plaintiff's suit on payment of Rs. 200 and directed that failing the deposit of the pre‑emption money, the suit would stand dismissed. The learned Additional District judge on appeal affirmed the finding of the trial Court that the sale‑deeds had been deliberately withheld by Lal Khan but held that they were originally under-stamped and there fore, could not be taken into consideration. He, however, thought that the sale transaction which was being pre‑empted could be proved otherwise, as a decree had been obtained by Lal Khan in his favour evidencing the sale and that Lal Khan could not be permitted to go back on his former position, although the doctrine of estoppel was not strictly applicable to the circumstances of the case. He agreed with the trial Sub‑Judge in holding that the plea of partial pre‑emption raised by Lal Khan was without any substance. He further held that the price of the equity of redemption paid was Rs. 200 which was fixed bona fide. In consequence, the appeal was dismissed with costs. Before me, learned counsel for Lal Khan appellant has raised four contentions. He has asserted that there was in fact no sale but a mere relinquishment of a doubtful right on the part of Fateh Muhammad in favour of Lal Khan and that on no valid ground, was Lal Khan precluded from showing the real nature of the transaction. Secondly, it was urged that as the sale‑deeds were admittedly under-stamped, they could not have formed the basis of a decree and no secondary evidence could be led to prove the sale in the absence of the original documents. It was reiterated thirdly, that the plaintiff‑respondent had sought to pre‑empt the sale partially and the suit was consequently liable to be defeated. Fourthly, it was argued that only the equity of redemption was sold and no decree for possession could have been passed as pre -emption connoted merely a right of substitution. A number of authorities have been cited before me by either side on the question whether the appellant could be allowed to go back on the position be took up in his own declaratory suit against Fateh Muhammad and could show that though the deeds executed by Fateh Muhammad in his favour purported to by sale‑deeds, yet they did not amount to a conveyance of property such as could be pre‑empted. Learned counsel for the appellant argued that the law of estoppel as prevalent in Pakistan was exhaustively dealt with by sections 115 to 117 of the Indian Evidence Act and that, the facts of the present case did not warrant the conclusion that any one of those sections was in terms applicable to the case. On the contrary, learned counsel for the plaintiff‑respondent drew my attention to a Division Bench authority of the Calcutta. High Court reported as Ganges Manufacturing Co., v. Sourujmull (I. L. R. (1880) 5 Calcutta 669). Garth, C. J., observed in that case " estoppels;" in the sense in which the term was used in English Legal phraseology, were matters of infinite variety, and were by no means confined to the subjects dealt with in Chapter VIII of the Indian Evidence Act. This seems to have been in the nature of an obiter dictum. In that case, one party had acted on the faith of an endorsement made on certain delivery orders by the contesting defendants in their own favour at the instance of the other defendants and had advanced money to the last‑named contracting party. The elements of estoppel were, therefore, made out on the facts of that case. The observation, consequently, to the effect that a man may be estopped not only from giving particular evidence, but from doing any' act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent, occurring in that judgment, must be held confined to the facts of that case. There is authority for the view that a recital in a deed cannot operate as estoppel between a party to the deed and a third party. Reference may be made in this connection to Lachman Lal v. Munshi Mahton (.A. I. R. 1933 Patna 708 (2) ). It may be useful also to consider the position under the English Law as in this respect the law in India and England is the same, vide Sarat Chunder Dev v. Goal Chunder Laha (I. L. R. (1893) 20 Calcutta 296 (P. C.)=19 1, A. 203). I find at page 433 of Halsbury's Laws of England, Volume 13, Second Edition, under the heading " Who may take advantage of Estoppel the following:‑‑ "This question is governed by the rule' that estoppels ought to be mutual. Only those can take advantage of an estoppel by record who, if the decision had been the other way, would have been bound by it‑that is to say, in case of a judgment inter partes, the parties and their privies: It is not enough that the person against whom the estoppel, is set up was party or privy to the judgment relied on each party to the later proceeding must have been party or privy to the earlier one ". Again, I find at page 459 of the same Volume the following:‑ "Estoppel only binds the parties (including their privies), or one or other of them, to the deed containing the representation relied upon, and does not affect the rights of strangers to the deed, and for this reason, it is said that estoppel by deed ought to be mutual or reciprocal ". There is also authority for the view that there is no room for any application of the doctrine of estoppel outside the provisions of section 115 of the Indian Evidence Act in this country Attention is invited in this connection to Darbari Lal v. Raneeganj Coal Association ( A.I.R. 1944 Patna 30 D. B.) and Asmatunnissa Khatun v. Harendra Lal Biswas (I. L, R. (1908) 35 Calcutta 904 D. B. The doctrine of estoppel rests upon the principle that the person invoking it has relied upon a declaration, act, or omission, of another person, and has thereby been induced to change his position to his detriment-see in this connection an authority of their Lordships of tile Privy Council reported as Pradyuinna Kumar v. Kumar Dinendra (A I. R. 1937 P. C. 256)) In agreement with the learned Additional District Judge, I hold, therefore, that there is no question of estoppel by record or by conduct in the present case. The plaintiff‑respondent was no party to the previous sale‑deeds or the proceedings in which Lal Khan obtained his declaratory decree. Learned for the plaintiff‑respondent cites Maghi v Narain and others (6 P. R. 1914 D. 13.), Udrej Singh v. Ram Bahal Singh (A. I. R: 1946 Allahabad 436), Muhammad Kttalil Khan v. Mahboob Ali Mian (A. I. R. 1942 Allahabad Khalil Khan v. Sreeramulu Venkatanarasimham (A. I. R. 1938 Madras 1004) and Dwijendra Narain v. Joges Chandra (39 Cal. L. J. 40 D.B.) in support of his contention that the appellant could not be allowed to resile from his previous position the present case. In the Punjab Record case, however, I find that the ruling is distinguish able on the facts. The nature of the sale itself was not being challenged in that case. The sale‑deed had been executed it favour of five persons and the transaction was ostensibly in divisible. The vendor in the pre‑emption suit sought to product patrol evidence to show that the sale was divisible. It was held that he could not be allowed to lead evidence in contradiction of the terms of the written deed. The remarks of the learned Judges to the effect that persons who by clothing their transaction in a particular form had induced a pre‑emptor to come forward and claim pre‑emption in respect of the transaction as a whole, could not be allowed to turn round, thereafter and claim to show that their real intention was something quite different, must be read in the light of the context. The other authorities cited by learned counsel pertain to case inter Parties only, and the principle was laid down that a party could not be allowed to approbate and reprobate at various stages of the same litigation or even in another suit arising out of the first suit. These authorities, therefore, are not in point. In this case it is clear that the recitals in the sale‑deeds in question and in the course of the declaratory suit, brought by Lal Khan, the statements made by him, were not addressed to the plaintiff‑respondent and were not intended to come to his knowledge so as to cause him to change his position to his detri ment. In such circumstances, the doctrine of estoppel could not be invoked. This principle was affirmed in Hafiz Abdul Karim v. Muhammad Yusaf and another (61 P. R. 1895). At the most, it could be said that the plaintiff respondent had brought his pre emption suit on the assumption that the recitals in the sale‑deeds and the position taken up by Lal Khan in his declaratory suit were correct. There could, however, be no estoppel if truth was accessible. The preemptor is the son of Fateh Muhammad, the alleged alienor. The minor plaintiff's guardian‑ad‑item could have easily ascertained the facts of the case from Fateh Muhammad or from some other relative. As the sequel will show Fateh Muhammad had at best a doubtful claim to the property and he was certainly not in possession, since the property was under mortgage and was in the possession of Lal Khan and others. The declaratory decree obtained by Lal Khan was not a judgment in rem such as would hold good against the whole world. It was a mere judgment in personam binding on the parties to the proceeding in which it was obtained. I am, therefore, unable to hold that Lal Khan must be pinned down to his position in his declaratory suit or to the recitals in the sale‑deeds in his favour even if the facts were otherwise, as against a stranger to the deeds and the previous litigation, namely, the plaintiff-respondent, on principle or on authority. There is another class of estoppel which seems to be interme diate between estoppel by record and estoppel in pais. The rule is that, a party cannot, after taking an advantage under an order (e.g., payment of costs), be heard to show‑ that it is invalid and ask for setting it aside, or to set up to the prejudice of persons who have relied upon it, a case inconsistent with that upon which it was founded. That rule covers cases inter parties only. He will not also be allowed to get ‑behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it. But so far as I can see, the circumstances of the present case would not justify the invoking of that principle. I apprehend, in consequence of the above discussion, that it was open to Lal Khan to plead and to prove that the sale‑deeds did not represent the situation correctly and that despite the declara tory decree which he obtained on their basis, he was at liberty to show against the pre‑emptor that there was in fact no sale by Fateh Muhammad in his favour. Fateh Muhammad is the sister's son of Rahmat or, putting it differently, the daughter's son of Umra. The mother of Fateh Muhammad had predeceased Rahmat. Another sister of Rahmat, Mst. Nekan, is however, admittedly alive. Rahmat being the last male‑holder of the land in suit, the, claim that either Mst. Nekan or the collaterals of Rahmat including Hayat. would be heirs, preferential to Fateh Muhammad. cannot be brushed aside as without foundation. These facts are established on the record by documentary 'evidence. In the circumstances Fateh Muhammad at best had a dubious claim which he gave up in favour of Lal Khan by means of the al leged sale‑deeds. Such a relinquishment of a doubtful right could not be held to be sale of the Land suit. The principle has been laid down in a number of authorities. Reference, inter alia may be made to Raj Bahadur v. Jagrup Pande (A. I. R. 1917 Oudh 59 D. B.) Masihuddin v. Maui Ram (I. L. R. 1920 Lah. 109 D. B.), Hamir Singh v. Sundar Singh (A. I. R. 1928 Lah. 174), and Nihala Ram v. Punnan Ram (A. I. R. 1927 Lah. 147). I consi der, therefore, that the alleged sale was not in reality a sale and could not have been pre‑empted. ''This finding by itself would be sufficient to dispose of the appeal. I must, however, notice some of the other points raised before me. The contention of learned counsel for the appellant that this was a case of partial pre‑emption ‑seems to me to be untenable. This position does not appear to have been taken up in the pleadings on behalf of Lal Khan in the trial Court. Moreover, the area as mentioned in the' declaratory decree .obtained by Lal Khan against Fateh Muhammad was mentioned as the area in the pre‑emption suit and it was obvious that the plaintiff was seeking to pre‑empt the alleged sale as a whole and not part of the land sold. He was also offering the full price alleged to have been paid for the equity of redemption. I hold that there is not much sub stance in the argument advanced by learned counsel for the appel lant in this respect. The original sale‑deeds were undoubtedly, withheld by the appellant. Unfortunately, however, there is definite evidence on the file to show that the original sale‑deeds were under-stamped. The stamp to be affixed on the sale‑deeds should have been cal culated not merely on the basis of Rs. 198, the ostensible considera tion for the sale of the equity of redemption, but also on the value of the mortgage, under section 24 of the Stamp Act. It is not seriously contested before me that the sale‑deeds were thus in adequately stamped and could not have been acted upon by any Court or tendered in evidence, unless the deficiency in the stamp and penalty had been first paid. The originals being withheld, normally the other party would have been entitled to lead secon dary evidence of their contents. But another hurdle is placed in the latter's path by the fact that the original sale‑deeds were admittedly under-stamped. In such circumstances, even secondary evidence would be barred. It seems that the sale‑deeds were not actually produced in the declaratory suit by Lal Khan, and Fateh Muhammad confessed judgment in his favour without the docu ments having been produced. If, however, there had been actually a sale, the plaintiff pre-emptor might conceivably have got over the difficulty by not relying on the scale‑deeds but on the declaratory decree which evidenced the sale. He could have pleaded that there was an oral sale and the vendee may not have been allowed to get away with it merely on the plea that an under-stamped instrument had been executed which he was not willing to produce. The difficulty in the present case, however, is that the plaintiff seems to have relied on the sale‑deeds and hoped to produce secondary evidence with regard to their contents. Such evidence would, however, be barred under section 91 of the Indian Evidence Act,' in the circumstances of 'this case. Learned counsel for the appellant is on strong ground when he urges that, in any case, a decree for possession by pre‑emption should not have been passed as the pre‑emptor could at best claim to be substituted for the vendor of the equity of redemption alone. In this respect the orders passed by the Courts below were errone ous, to my mind. In my view of my finding on the main issue, the other points raised are merely of academic interest, I hold that as there was no pre‑emptible sale, the suit of the plaintiff‑respondent should have been dismissed. I allow the appeal and order accordingly. In view of the circumstances of the case I leave the parties to bear their own costs throughout. The decision will be communicated to the parties or their counsel. K. M. A./A. H. Appeal allowed.