AGRAWAL, C. J. - (1.) THIS is an appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment dated 24th Aug. 1987 passed by learned Single Judge in Civil First Appeal No. 78 of 1979 reversing the judgment and decree dated 25th July 1979 of the District and Sessions Judge, Jaipur City.
(2.) BRIEF facts of the case-are that Ram Gopal and Sitaram were real brothers. Their father was Kalyan Bux. Ram Gopal died in 1969 leaving behind 3 daughters and two sons. Sita Ram has one son, namely, Govind Behari, respondent No. 6. The case of the plaintiffs is that one house was purchased by Ram Gopal and Sitaram on 30. 1. 1953. On the death of Ram Gopal the plaintiffs and other sons and daughters became the joint owners of the property with Govind Behari and Sita Ram. They alleged that in the event of partition in the joint family property, each one of the two branches, aforesaid, would have been entitled to the half share but the defendant nos. 1 and 2 sold away half portion of the house in dispute to Smt. Godawari Devi, defendant no. 3 on 15. 7. 1975 for a consideration of Rs. 21,999 and handed over possession of their share to her. The plaintiffs, thereafter, brought the suit for pre-emption claiming that by virtue of being co sharers of the joint family property, they had the prior right of purchase under the provisions of Rajasthan Pre-emption Act. According to the plaintiffs, the sale made by defendant nos. 1 and 2 to the defendant no. 3 was without any notice to them. Consequently, plaintiffs, who are the heirs and legal representatives of Ram Gopal brought the suit claiming that they being the co shares along with defendant nos. 4 and 5, were entitled to the right, title and interest as well as possession conveyed by defendant nos. 1 and 2 to the defendant no. 3 through the sale deed dated 15th July 1975. In view of their right of pre emption, they claimed that the sale deed executed in favour of defendant no. 3 was void and, thus, liable to be set aside. Defendant nos. 1 to 3 filed two separate written statements contesting the claim set up by the plaintiffs. It was alleged that the disputed house had been partitioned in between the two brothers, i. e. , Ram Gopal and Sitaram during the life time of Ram Gopal and they were living separately in the said house. It was also alleged that out of three, two plaintiffs were married daughters and they were living with their husbands and that the) did not have any intention to shift to the house in dispute. They also asserted that apart from plaintiffs, there were other legal representatives of Ram Gopal, who were arrayed as defendant nos. 4 to 6 (Mohan Lal Madal Lal and Dharma Devi ). Their rights and cuse of action being joint and unseverable, they should also have joined the suit and as they did not join, the plaintiffs cannot get a decree. They also took the pleas of waiver and acquiescence. On the pleadings of the parties, the trial court framed as many as seven issues and on the oral and documentary evidence, it held that the plaintiffs were entitled to the decree on the following conditions : - (i) that they deposit Rs. 23,999 in the court by 1. 9. 1979; (ii) that on being depositing the amount, aforesaid, defendant no. 3 will be entitled to withdraw the same and plaintiffs would be entitled to get possession and documents of the disputed house and (iii) if the amount will not be deposited by the plaintiffs within the time prescribed, their suit will be deemed to have been dismissed. Aggrieved, Smt. Godavari Devi preferred the first appeal, which was allowed by Hon'ble Mr. Justice G. M. Lodha (as he then was) and the decree of the trial court was set aside. Consequent upon the same, the suit stood dismissed. Against the judgment and decree of the learned Single Judge, the appellants (Plaintiffs) have come before us by way of this Special Appeal. The question that arises for determination before us is whether a partition in the family, in respect of the house in dispute, in between Sitaram and Ram Gopal, had taken place and by virtue of that partition, the plaintiffs had lost right to claim pre emption alleging that the sale deed executed by defendant nos. I and 2 in favour of defendant no. 3 was invalid being the property of joint family.
(3.) IT is not disputed in this case that Ram Gopal and Sitaram were the co-sharers of the house in question. On the plea of partition, trial court framed issue no. l and after discussion of the evidence, held that the house had not been partitioned. We have also gone through the record and from Exb. A-2, which is a sale deed executed in favour of defendant no. 3 by defendant nos. 1 and 2 we find that it has been clearly recited that the disputed house was in the joint ownership and occupation of Sita Ram and Ram Gopal. At page 3 of the document, the following words are important: - "is SAMPATTI PAR RAM GOPAL WA SITARAM DONO BHAI BA HASIAT BARABAR MALIK WA KABIJ RAHEN. " From the rest of the rectial of this document, the trial court, in our opinion, rightly concluded that the partition in between the two brothers, aforesaid, not been established. Since this was not the controversy raised and decided either before the learned Single Judge or before we do not consider it necessary to deal with that matter any further. The next question that was argued vehemently before the learned Single Judge as well as before us was that the plaintiffs were barred by acquiescence and waiver to bring the suit of pre- emption. Learned Single Judge found that the plea of acquiescence and waiver stood proved on account of the following facts and circumstances: - (a) that the possession of some part on the property sold was given to the purchaser by the plaintiff and some parts were given in their presence without any demour or protest, oral or in writing by the defendants no. 4 to 6, and the pre-emptors; (b) that constructions of important apartment like stair case, chabutris and latrine were made by the purchaser in the presence of the plaintiffs without any demour or protest and constrcutions were continue at least for 15 dyas, as admitted; (c) that having come to know of the sale, and having handed over possession of some part voluntarily and allow handing over of possession of other parts and having witnessed the constructions by way of improvement or alterations referred to above costing minimum Rs. 2,000/- although the appellant claim more than Rs. 12,000/-, the plaintiff kept quite and remained conspicuously silent for the entire period of one year, till the last date of limitation, when the suit was filed and that too without notice of earlier date. . . Estoppel has been considered to be a rule of evidence that prevents the person estopped from denying the existence if a fact. The English law on the subject is that estoppel is not a cause of action in itself nor does it crete one. Lord Wright, in Canada & Dominion Sugar Co. Ltd. V. Canada National (West Indies) Steam Ships Ltd. (1) estopped as under : - "estoppel is a complex legal notion, involving a combination of several essential elements, the statement to be acied upon, action on the faith of it, resulting detriment to the actor. Estoppel is often described as a rule of evidence, as, indeed, it may be so described. The whole concept is more correctly viewed as a substantive rule of law. " Lord Maugham, speaking for the Privy Council in Maritime Electric Co. v. General Dairies Ltd. (2) noted as under : - ". . . this conclusion must follow from the circumstance that an estoppel is only a rule of evidence which under certain circumstances can be invoked by a party to an action. " ;