TMI Blog1923 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ws' 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. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 consideration that it was still thought to be an open question before their Lordships 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. 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 Harnath Kaur v. Indar B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. 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. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to transfer them are to be enforced as soon as the estate falls 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 the very first, on a regard for long established practice rather than on principle and to have failed to commend themselves to Lord Elden. 8. Then Mr. Justice Tyabji, at page 559, 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 benefits) when such a transfer is purported to be made an attempt is in effect made by the two persons to chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of Property Act, but as to which damages can never be recovered, because the contract is not a performable contract until the realisation of the expectation occurs. 10. 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 spes successione, because, after carefully providing for all eventualities, the documents deal with the possibility of the widows, or one of them, relinquishing their life intersts either jointly or severally, or selling them to the reversionary 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. It is sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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