JUDGMENT Dalal, J.
1. In my opinion the ruling quoted by the two Subordinate Courts of Chinnaswami v. Appaswami [1919] 42 Mad. 25 covers the present case. The plaintiff is the mother of certain judgment debtors in whose favour the plaintiff's mother executed a deed of gift on 22nd January 1913. The plaintiff Mt. Chito gave her consent to the deed of gift by signing as an attesting witness. Mt. Chito's mother died in 1914 and ever since that time the judgment-debtors have been in possession. When the decree-holder attached this property of the judgment-debtors, Mt. Chito objected that the property really belonged to her because she was not bound by the gift executed by her mother. The Judges who pronounced the judgment of the Madras case quoted a ruling of 1864 reported in Pratab Chander v. JOY Monee Dabee 1 W.R. 98. The learned Judges observed in that case:
We think that it admits of no reasonable doubt that under Hindu Law a Hindu lady in possession can relinquish, and by relinquishing anticipate for the reversioners their period of succession; and if she does this in favour of second reversioners with the consent of the first, then or afterwards expressed, the relinquishment is valid.
2. The present is just such a case. The learned counsel for the plaintiff Mt. Chito sought to distinguish the ruling in the Madras case on the ground that in the Madras case both the female holders had actually executed the deed, while in the present case the female holder in possession had executed the deed and the next female holder had merely given her consent. This is a distinction without a difference. It is true that such a distinction has been drawn by King, J., in an Oudh case, Krishnapal Singh v. Sri Raj Kuar A.I.R. 1927 Oudh 278, but the suit was not decided on that point and the learned Judge went on to draw another distinction that such a proposition of law of the Hindu Code will not apply to the Taluqdari Law prevailing in Oudh. As already mentioned, in the case of the Weekly Reporter no deed was executed by the next female heir and the proposition of law was laid down in general terms and the surrender was held to be valid merely on the consent of the next female heir expressed either at the time or subsequently. Another case of this Court quoted by the learned counsel is that of Harihar Prasad v. Udai Nath Shah A.I.R. 1923 All.190. That case supports the view of the two Subordinate Courts because it was held there that at the moment or time when the next reversioner succeeded he being an insolvent the property vested in the receiver in insolvency and not in the reversioner, and, therefore, the consent of the reversioner could not bind the receiver in insolvency.
3. The next point argued on behalf of the appellant was that the entire estate had not been surrendered. It may be held as a finding of fact that the entire estate was surrendered, otherwise Mt. Chito's mother Mt. Sundar would not have made herself indebted to her grandsons for payment of a sum of Rs. 6 per month for her own maintenance. This reservation shows that no property remained with her afterwards.
4. On the point of estoppel, the learned counsel argued that the decree-holder of a simple money decree could not be said to have acted on the representation made by Mt. Chito for a term of over 12 years to the effect that not she but her sons were owners of the property. He stated that if the decree-holder had been a mortgagee in possession the principle of estoppel would have applied. It is, however, forgotten by learned counsel that the advance of money would not have been made to the sons of Mt. Chito if the property now in suit had not been standing in the names of the sons with the consent of Mt. Chito. She has remained silent for over 12 years, and, in fact, there can be no doubt that the present suit is brought by her merely to save the property not for herself but for her sons. In my opinion she is equitably estopped from claiming the property even as against the decree-holder of her sons under a simple money decree.
5. The next point argued by counsel was that in a suit under Order 21, Rule 63, Civil P.C., there is no necessity to sue for possession, and, therefore, there can be no bar of time. It is correct that the suit is merely for a declaration to set aside an order passed in the execution department, but a Court of equity has to see whether there is an honest suit for declaration or whether the declaration is sought on principles which would be held by a Court to be inequitable. This is just such a case where a declaration should not be granted under the circumstances.
6. I dismiss this appeal with costs.