PRIVY COUNCIL

               Annada Mohan Roy

               Vs.

               Gour Mohan Mullick

                         P. C. A. No. 104 of 1921
(Lords Sumner Phillimore, J. Sir John Edge and Mr. Ameer Ali JJ.)

               4.6.1923

               JUDGMENT

Lord SumnerJ.

1. Three points have been argued on these appeals, one by Mr. De Gruyther, the
leading counsel for the appellant, and two others by Dr. Abdul Majid, the junior
counsel.

2. The plaintiff, the present appellant, had agreements with three persons, who are the
respondents, only two of whom, however, appear by Counsel, under which he pur
ported with great elaboration to purchase from them their expectations under the will
of their uncle, or alternatively their rights as his nephews expectant upon the termi
nation of the surviving widows' rights in the property of the uncle, and among many
other purposes, which are recited in this agreement, for which advances are agreed to
be made, one, and apparently the principal one, was that an appeal might be
prosecuted ultimately to His Majesty in Council for the purpose of establishing a will
which the deceased was said to have made.

3. Unfortunately their Lordships, affirming the decision in the Court below, found that
that will was a forgery. That therefore reduced the expectations of the three
respondents to their interest in the property after the widows' rights should come to an
end, and as a matter of fact after a time one widow died and a compromise was
entered into with the approbation of the Court in respect of the rights of the other
widow, the effect of which was to accelerate the time when the nephews became
entitled to the inheritance.

4. In the present suits in India the trial Judge stated ten issues. The first four of those
issues were argued and dealt with by him. The point in substance upon which those
four issues turned was whether or not the agreements were illegal or void on the
ground that they dealt with expectancy.

5. There were a number of others - as a matter of fact, eleven in all - but the remaining
seven were not dealt with by the learned Judge. An application was made to him that
he should pronounce a decree giving effect to his deter mination of the first four
issues, which he declined to do upon the ground that there remained some issues in
the case which had not been dealt with, one of them, for example, being an issue
whether the plaintiff was entitled to a re fund of the amounts which he had in fact paid
or any of them, and another whether his rights were barred by limitation.

6. The present appellant was ad vised that his best course was to obtain an immediate
decree upon the four issues, which had been dealt with and appeared at that time to be
the only substantial ones, in order that he might prosecute his appeal to the High
Court, and ultimately to His Majesty in Council, and he therefore elected to abandon
all the other issues, whatever they might be in fact, he never called any evidence in
support of them, and a formal order was made upon his petition disposing of , them all
in that way. We are told, and very likely it may be so, that at that time the advice was
largely influenced by the conside ration that it was still thought to be an open question
before their Lord ships whether, apart from the Transfer of Property Act, it might be
held competent to these heirs, according to the ordinary Hindu law, to contract to
transfer, and ultimately to transfer their expectation, such as it was, and no doubt, if
that was the real point of the litigation, it was worth while to abandon minor points in
order to get that issue determined.

7. Between the time when the decree was asked for and obtained and the present time
there has been a decision of their Lordships' Board in the case of HarnathKuar v.
IndarBahadur Singh,1and although, as it appears to their Lordships, it simply re-states
what had frequently been stated before, the appellant now recognises that the last
word has been said, so far as he is concerned, about the possibility under Hindu law of
such an interest being transferred.

8. Under these circumstances an application was made to their Lordships by Mr. De
Gruyther to allow the petition which had been presented to the High Court to be
recalled, and the decree that was made upon that petition to be set aside and so to
allow in some shape or form discussion, if not proof, of the remaining issues in the
case, the object being to show that there were, or might be circumstances in which it
possibly could be held that the time of the discovery of the illegality of the contracts
was not the time when the contracts were made and the parties knew the law or must
be presumed to have known it, but at a later date (what date their Lordships are not
exactly told).

9. It was urged that, if such circum stances could be suggested here, a view similar to
that which the Board took in the case above mentioned might be taken in favor of the
present appellant also. In that case, however, there were special circumstances, wholly
different from those in the present case, circumstances which were proved in evidence
and were sufficient for their Lordships to act upon and to enable them to say that the
discovery in the case was later than the date of the contract itself.

10. There has been no suggestion anywhere in the course of the present proceedings
that any such facts occurred as could alter the view which must normally be taken of
the meaning of the word " discovery" and of the time at which that discovery must be
held to have occurred. Not only so, but it was by the deliberate act of the appellant
himself, for considerations which at the time were very likely wise considerations, that
he closed the door to any investigation of that issue at all.

11. Their Lordships are content to dispose of the first point by saying that the
additional issues cannot be gone into now and that upon the face of the matter the
appeal must be dealt with upon the question whether, either under the Transfer of
Property Act or under the Hindu law applying to purchases of expectations of in
heritances, there is any ground upon which these contracts can be supported.

12. 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.

13. It is admitted that there is no au thority to be found anywhere which supports the
view that such a contract is possible, and it is admitted that there is authority in India
to the contrary, the authority in question being the case of Sri Jaganna da Raju v. Sri
Rajah PrasadaRao2which so satisfied the learned Judge at the trial that he expressed
his assent to the reasoning, without further discussion, and the High Court in its turn
was satisfied also. The reasoning of that decision may well be summed up first in a
quo tation from the judgment of Chief Justice Wallis, and secondly, in a quotation
from that of his colleague, Mr. Justice Tyabji.

14. The learned Chief Justice says at page 558 [of 39 Mad.] :-

       " On this question, looked at apart from authority, I should not entertain any
       doubt, as it seems futile to forbid such transfers or expectancies if contracts to
       transfer them are to be en forced as soon as the estate fails into possession. In
       these circumstances it seems to me that it is our duty to give effect to what we
       consider plain provisions of our statute law instead of following a course of
       English decisions which would appear to have been based, from very first, on a
       regard for long established practice rather than on principle, and to have failed
       to commend themselves to Lord Eldon."
15. Then Mr. Justice Tyabji at page 559 [of 39 Mad.,] says:-

       " The Transfer of Property Act does not permit a person having expectations of
       succeeding to an estate as an heir to transfer the expectant bene fits ; when such
       a transfer is purported to be made an attempt is in effect made by the two
       persons to change with each other their legal positions, and an attempt by the
       one to cloth other with what the Legislature refuses to recognize as rights, but
       styles as a mere chance incapable of being transferred. It would be defeating the
       provisions of the Act to hold that though such hopes or expectations cannot be
       transferred in present or future, a person may bind himself to bring about, the
       same results, by giving to the agreement the form of a promise to transfer not
       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
       Legislature has chosen to apply to it for the purpose of condemning it. When the
       Legislature refuses the transaction as an attempt to transfer a chance, it
       indicates the true aspect in which it requires the transaction to be viewed."
16. Their Lordships think that they are only following out numerous other passages
which have been referred to in earlier judgments of this Board when they accept that
reasoning and that conclusion. It is impossible for them to admit the common sense of
maintaining an enactment which would prevent the purpose of the contract, while
permitting the contract to stand as a contract, or to see how by appealing to Section 65
of the Indian Contract Act, or to the nature of the bargain as a mere bargain de futuro,
they could up hold it as a contract when it is a contract as to which, not only must
specific performance be re fused under the Transfer of property Act, but as to which
damages can never be recovered, be cause the contract is not a per formable contract
until the realisation of the expectation occurs.
17. There is another way in which the learned counsel for the appellant puts the point,
namely, that there is here a contract wholly distinguishable from any contract as to
spessuccession, because, after carefully providing for all event ualities, the documents
deal with the possibility of the, widows, or one of them, relinquishing their life
interests either jointly or seve rally or selling them to the re versionary heirs, in which
event from the date of the relinquishment or sale, the heirs would become the present
owners of the estate by right of inheritance.

18. It is suggested that this pro vision ought to be read as relating to a transaction with
strangers, embedded in the middle of a much longer contract with the parties to this
appeal and relating to their hopes of inheritance; in other words, that it should be
treated as though it read :

       " Further, if we can obtain by purchase from total strangers to the family a
       portion of our late uncle's property, then we under take to sell it to you on the
       same terms as those upon which we have undertaken to sell our
       spessuccession."
       " It is not necessary to discuss how far such a contract might be supportable,
       because it is quite plain upon the documents that this is not such a contract, and
       therefore the point,ingenious though it is, is sufficiently dealt with by
       dismissing it.
19. The result, therefore, is that on all the points the appeals fail. As they have been
consolidated in India and before their Lordships there will be one set of costs only, and
the two success ful respondents who appear by Counsel will get that set of costs, and
their Lordships will humbly advise His Majesty accordingly.

Appeals dismissed.

Cases Referred.

1. AIR 1922 PC 403: 45 All 179 : 50 IA 69 : 37 CLJ 346 : 44 MLJ 489 : 9 OLJ 652
(PC)

2. (1915) 39 Mad 554 : 28 MLJ 650 : 17 MLT 419 : 29 IC 241 : (1915) MWN 626,