Kerala High Court
Hameed vs Jameela on 13 October, 2009
Equivalent citations: (2010) 1 ICC 100, AIR 2010 KERALA 44, 2010 (2) AIR KAR R 180, (2009) 4 KER LT 531, 2010 (2) AKAR (NOC) 180 (KER.), 2010 AIHC (NOC) 504 (KER.)
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 624 of 1998(G)
1. HAMEED
... Petitioner
Vs
1. JAMEELA
... Respondent
For Petitioner :SRI.N.SUBRAMANIAM
For Respondent :SRI.T.H.ABDUL AZEEZ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/10/2009
O R D E R
"C.R."
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
S.A. NO. 624 of 1998
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 13th day of October, 2009
J U D G M E N T
----------------------
Would receipt of money in lieu of share by an heir-apparent in the property of his/her father during lifetime of the latter estop the heir from claiming share in the property on the father dying intestate? That is the substantial question of law framed for a decision in this appeal.
2. This Second Appeal was disposed of by this Court as per judgment dated May 26, 1999. Respondent No.1 challenged judgment and decree in the Supreme Court in Civil Appeal No.3583 of 2001. Allowing the appeal the case was remitted to this Court for a decision after framing substantial question of law. Accordingly, the above substantial question of law is framed.
3. The Second Appeal arises from judgment and decree of learned Additional District Judge, North Paravur in A.S. No.138 of 1996 confirming judgment and preliminary decree for partition passed by learned Munsiff, Perumbavoor in O.S. No.228 of 1992. Appellant and respondent Nos.1 to 9 are the children of respondent No.10 and Aboobacker who died intestate on 25.2.1974. The suit properties S.A. NO.624 of 1998 -: 2 :- belonged to the late Aboobacker. According to respondent No.1 on the death of her father, Aboobacker intestate she got 1/13th share in the suit properties. Respondent No.1 claimed partition and separate possession of her share. Respondent No.11 is the wife of appellant and an assignee from one of her sisters. Appellant and respondent Nos.2 to 10 contended that Aboobacker had orally gifted the suit properties to them. Respondent No.1 was given 10 sovereigns of gold at the time of her marriage. Later Aboobacker gave respondent No.1 Rs.1,000/- in lieu of her share in his properties and with that amount respondent No.1 purchased 25 cents as per assignment deed No.318 of 1972 copy of which is Ext.B1 and in view of that, respondent No.1 is not entitled to claim any share in the suit properties. It is also contended that plaint E schedule property was sold by Aboobacker during his lifetime and that the share of respondent Nos.3 and 7 was purchased by respondent Nos.9 and 11. Learned Munsiff found that respondent No.1 at a time when her father was alive and succession had not opened could not transfer her right in the father's property and is entitled to partition and separate possession of the share claimed by her. Accordingly a preliminary decree was passed. Appellant took up the matter in appeal. Learned Additional District Judge confirmed the judgment and preliminary decree. Hence this Second Appeal. Learned counsel for appellant S.A. NO.624 of 1998 -: 3 :- has placed reliance on the decisions in Nazir-Ul-Haq and Others v. Faiyaz-Ul-Rahman and Others (33 ILR Allahabad
457); Gulam Abbas v. Haji Kayyam Ali (AIR 1973 SC 554) and Damodaran Kavirajan v. T.D. Rajappan (AIR 1992 Ker.397). According to the learned counsel conduct of respondent No.1 evidenced by Ext.B1 amounted to estoppel as provided under Section 115 of the Indian Evidence Act (for short, "the Act") and hence she is estopped from claiming share in the suit properties. Learned counsel for respondent No.1 would contend that Ext.B1 cannot be taken into account for any purpose whatsoever, as going by Ext.B1 it appears to be a deed of exchange, respondent No.1 or her father are not parties to Ext.B1 and hence the recital therein cannot bind respondent No.1. It is also contended by learned counsel that recital in Ext.B1 is the result of a mischief committed by the appellant in collusion with the husband of respondent No.1. At any rate Exts.A4 and A5 estopped the appellant and respondent Nos.2 to 11 from contending that respondent No.1 has no share in the suit properties. Learned counsel has placed reliance on the decisions in I.T. Commr. A.P. v. M. & G. Stores (AIR 1968 SC 200) and I.T. Commr., Bombay v. Rasiklal Maneklal (HUF)(AIR 1989 SC S.A. NO.624 of 1998 -: 4 :- 1333).
4. Exhibit B1 is the document pressed into service by the appellant and respondents Nos.2 to 11. That is styled as a deed of exchange dated 6.3.1972 executed by the husband of respondent No.1 in her favour in respect of 25 cents of land. According to the learned counsel for respondent No.1, Ext.B1 cannot be an exchange since as per Section 118 of the Transfer of Property Act (for short, "the TP Act") an exchange is between same kind of property whereas in Ext.B1, exchange is stated to be between 25 cents of land and Rupees One Thousand. It is also the contention of learned counsel that respondent No.1 or her father are not signatories to Ext.B1 so that the recitals in Ext.B1 relied on by the appellant and respondent Nos.2 to 11 bound respondent No.1 or her father. It is the further contention of learned counsel that there is nothing on record to show that respondent No.1 was aware of Ext.B1.
5. The nomenclature of a document is not by itself decisive as to the nature of the document. Nor is the nature of Ext.B1 a matter of much relevance in deciding the issue involved in this case. For, the limited purpose for which appellant and respondent Nos.2 to 11 placed reliance on Ext.B1 is to show the alleged conduct on the part of respondent No.1 in receiving Rs.1,000/- in lieu of her share in the property of her father during the lifetime of father and utilising that S.A. NO.624 of 1998 -: 5 :- money for acquisition of 25 cents of land which according to the appellant and respondent Nos.2 to 11 estopped respondent No.1 from claiming share in the property of the father. Though Ext.B1 is named as a deed of exchange, I can only understand it as a sale deed as per which the husband of respondent No.1 sold 25 cents of land to her for consideration of Rs.1,000/-. The decisions relied on by the learned counsel for respondent No.1 in this regard do not apply to the nature of transaction made as per Ext.B1.
6. The question is whether respondent No.1 is estopped by her conduct from claiming a share in the property of her deceased father. The relevant recital in Ext.B1 reads, ..."
1000
-
...."
(....as per mutual consent, the
properties shown in Schedule below,
is assigned to you absolutely and
S.A. NO.624 of 1998
-: 6 :-
given into your possession for
consideration of Rs.1,000/- which
amount your father, Mookkada
Veeran Aboobacker has decided to
give to you in lieu of your right in the
family of your birth, sent through
your brother Hameed and is
received through K.T. Hameed......).
(emphasis supplied)
7. The relevant recital in Ext.B1 is to the effect that the late Aboobacker gave respondent No.1 Rs.1,000/- in lieu of her right in her family of birth, that amount was sent by him through his son, Hameed (appellant) and it was paid to the husband of respondent No.1, assignor under Ext.B1 which was taken by him as consideration for assigning the 25 cents belonging to him to respondent No.1 as per Ext.B1. Appellant as D.W.1 has given evidence regarding the circumstances under which the said amount of Rs.1,000/- was paid to the husband of respondent No.1 on her behalf. He stated that after the marriage of respondent No.1 in the year 1968 herself and husband had been pressing for her share in the property of her father and they even took up quarrel at her paternal home. Aboobacker was undergoing treatment for cancer during that time. Aboobacker, accepting the demand of respondent No.1 and her husband gave S.A. NO.624 of 1998 -: 7 :- Rs.1,000/- in lieu of her share in his property at the time of Ext.B1, transaction. The amount was sent through him. He gave the amount to the husband of respondent No.1 as consideration for assigning the 25 cents of land to respondent No.1 as per Ext.B1. Appellant is an attester in Ext.B1. Though he was cross-examined at length there is nothing to disbelieve his evidence which gets corroboration from the relevant recital in Ext.B1 which I have extracted above. It is contended by learned counsel for respondent No.1 that in so far respondent No.1 or her father are not signatories to Ext.B1 and there is nothing on record to show that respondent No.1 was aware of Ext.B1, neither Ext.B1 nor the recital therein would bind her. That argument I am unable to accept reason being that Ext.B1 as stated above, is an assignment deed in favour of respondent No.1 by her husband. It is somewhat difficult to believe that respondent No.1 was unaware of Ext.B1 which was executed on 6.3.1972 in her favour and remains in force even now. There is no case or evidence that respondent No.1 and her husband were at loggerheads at the time of Ext.B1 or thereafter so that husband of respondent No.1 committed mischief in collusion with the appellant to defeat her right in her father's property. I must also bear in mind that the father died on 25.2.1974. In such a situation I have no reason to think that a false recital was made in Ext.B1 even when the father was alive and S.A. NO.624 of 1998 -: 8 :- succession had not opened. It is also relevant to note that in spite of appellant and respondent Nos.2 to 11 specifically pleading about Ext.B1 and the recital in it in their written statement and appellant giving evidence as D.W.1, respondent No.1 or her husband has not gone into the witness box to deny truth of the recital in Ext.B1. In the circumstances I have no reason to discard the recital in Ext.B1 as untrustworthy.
8. Then the question is whether conduct of respondent No.1 evidenced by Ext.B1 estopped her from claiming share in the property of her father after his death. In Re Parson (1890) 45 Ch.D 51) it is held, "it is indisputable law that no one can have any estate or interest at law or in equity, contingent or other in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the lifetime of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property".
Under Section 6(a) of the T.P. Act the chance of an heir-apparent to succeed to an estate is not alienable. Though Sec.2 of the T.P. Act S.A. NO.624 of 1998 -: 9 :- states that provisions of Chapter II of that Act does not affect any rule of Mohammedan Law, authorities on the point say that even under the provisions of Mohammedan Law there is an interdiction on an heir-apparent transferring his right in an estate. The chance of a Mohammedan heir succeeding to an estate is also a mere spes successionis and cannot be the subject matter of a transfer. Hence under Sec.6(a) of the T.P. Act and under the principles of Mohammedan Law, an heir-apparent cannot transfer his chance of succeeding to an estate.
9. Section 6(a) of the T.P. Act is a rule of law. Estoppel is a rule of evidence based on justice and equity. Spencer Bower and Turnor, in "The Law Relating to Estoppel by Representation, 3rd Edn., quotes Coke, thus:
"estoppe" cometh of the French word `estoupe', from whence the English word `stopped': and it is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead".
Viscount Haldane said on the principle of estoppel, in London Joint Stock Bank Ltd. v. Mac Millan (1918) AC 777), S.A. NO.624 of 1998 -: 10 :- "it is hardly a rule of what is called substantive law in the sense of declaring an immediate right or claim. It is rather a rule of evidence capable of none-the-less on that account of affecting gravely substantive rights".
(emphasis supplied).
Lord Wright observed in Evans v. Bartlam (1937) 2 All. E.R. 646), "estoppel is a rule of evidence that prevents the person estopped from denying the existence of a fact".
Best, in 'The Principles of the Law of Evidence', 12th Edn., at page 462 treats estoppel as, "belonging rather to substantive than to adjective law".
In Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) AC 46) it is stated that estoppel is a principle of justice and of equity. This S.A. NO.624 of 1998 -: 11 :- principle has found statutory recognition in Sec.115 of the Act which reads, "115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing".
10. When Sec.6(a) of the T.P. Act and the principles of Mohammedan Law frown against transfer of chance of an heir- apparent succeeding to an estate, could estoppel as a rule of evidence be applied to estop an heir-apparent, on account of his conduct from succeeding to the estate? Does the two provisions conflict each other? It has been held that Sec.6(a) of the T.P. Act as a rule of law and estoppel as a rule of evidence act in different lines. The Supreme Court, in Jumma Masjid v. Kodimaniandra Deviah (AIR 1962 SC 847) though referring to Secs.6(a) and 43 of the T.P. Act stated, S.A. NO.624 of 1998 -: 12 :- "the two provisions operate on different fields and under different conditions and there is no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other; both of them can be given full effect on their own terms in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by Sec.43 would destroy its utility to a large extent".
A learned Single Judge of this Court while considering the application of Sec.6(a) of the T.P. Act and Sec.115 of the Act held in Damodaran K. Kavirajan v. T.D. Rajappan (AIR 1992 Ker.
397) after referring to the dictum laid down by the Supreme Court in Jumma Masjid v. Kodimaniandra Deviah (supra) that the above principle would apply with equal vehemence in regard to estoppel under Sec.115 of the Act as well. Hence Sec.6(a) of the T.P. Act or the relevant provision of Mohammedan Law prohibiting transfer by an heir-apparent of the chance of succeeding to an estate will not, and need not stand in the way of the court considering the S.A. NO.624 of 1998 -: 13 :- application of rule of estoppel in a suitable situation. While holding so I also bear in mind the principle laid down in Section 38 of Mulla's Principles of Mohammedan Law, 18th Edn. which states, "38. Rules of Equity. The rules of equity and equitable considerations commonly recognised in courts of equity in England are not foreign to the Mussulman system, but are in fact often referred to and invoked in the adjudication of cases under that system".
11. In Nasi-Ul-Haq and Others v. Faiyaz-Ul- Rahman and Others (33 Allahabad 457) after referring to the Principles of Mohammedan Law it was held that the relinquishment of the husband of his right to succeed as heir to his wife was not obnoxious to the prohibition contained in Sec.6(a) of the T.P. Act. Reference was made to the decision of Collins, C.J. and Parker, J in Kunhi Mamod v. Mnhi Moidin (1896) ILR 19 Madras 176). In that case plaintiff, in consideration of Rs.150/- paid to him by his mother in respect of the estate of the mother which plaintiff would become entitled on her death admitted that he had no longer any right in the property of his mother. It was held that so far as the S.A. NO.624 of 1998 -: 14 :- conduct of plaintiff was not proved to be forbidden by Mohammedan Law, plaintiff is bound by that conduct. In Latafat Husain and Others v. Hidyat Husain and Others (AIR 1936 All. 573) the heir-apparent executed a deed relinquishing her claim to inheritance in the estate of her husband and after his death brought a suit for recovery of her share in the estate. Sulaiman, C.J. who spoke for the Division Bench referred to the decision in Mt. Khanum Jan v. Mt. Jan Beebee (1827) 4 SDA 210) where it was held that under Mohammedan Law a renunciation is not in itself valid, and observed that in that case the question of estoppel, either in quality or arising under any rule of evidence does not appear to have been directly referred to the Muftis and the Kazi for their opinion. The Division Bench held, "So far as the proposition under the Mohomedan law a relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void is concerned, the authorities seem to be all one way. On principle there seems to be no distinction between the rules of English law and the rules of Mahomedan law. Such a release or renunciation cannot be operative so as to divest the heir of all rights in S.A. NO.624 of 1998 -: 15 :- the inheritance when the succession opens and to vest the whole property in the other person in whose favour the relinquishment was made.
Inheritance is governed by the personal law of the deceased owner, and the devolution of property is brought about by the operation of law and does not depend on the will of the heir. But there is nothing to prevent an heir from not claiming a share in the property which has devolved on him or from so acting as to estop himself from claiming it.
The question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mahomedan law. In 13 ALJ 110(7), a Bench of this Court held that there was nothing illegal in a person, for good consideration, contracting not to claim the estate, in the event of his becoming entitled to inherit on the decease of a living person; and further held that the provisions of S.6, T.P. Act, did not in any way create a bar against the legality of such a contract. The same view was expressed in 13 ALJ 1141(8), where a Hindu reversioner had relinquished his right upon receipt of consideration. Obviously S.6, T.P. Act, cannot in terms apply to such a relinquishment. If the relinquishment is in the nature of a gift or transfer of a contingent right then of course it S.A. NO.624 of 1998 -: 16 :- would be void under S.6; but if it is merely an agreement or contract for not claiming a contingent right of inheritance when succession opens in future, then the case would not be governed by the provisions of S.6 at all".
(emphasis supplied) It was decided that the plaintiff cannot be allowed to go back from the relinquishment she had made.
12. The Madras High Court in Sulaiman Sahib v. Ibrahim Meeral Beevi (1953) 1 MLJ 388) and Abdul Kafoor v. Abdul Razack (1958) 2 MLJ 492) = AIR 1959 Madras 131) took the view that in the case of Mohammedans transfer of an expectancy by an heir presumptive is void ab initio and that no question of an estoppel can arise by reason of the heir renouncing her claim before the expectancy opens. Mulla, in 'Transfer of Property Act', 7th Edn., at Page 59 says that the decision (of the Madras High Court) though justified on the facts of the case errors in stating the principle thus.
13. The issue came up for consideration before the Supreme Court in Gulam Abbas v. Haji Kayyam Ali (AIR 1973 SC 554). In that case at a time when the father was alive he went into financial difficulties and his properties were almost on the verge of S.A. NO.624 of 1998 -: 17 :- liquidation when two of his sons paid off his debts but in order to get the properties for themselves. Two other sons executed deeds in favour of the sons who were paying off the debts acknowledging that they took certain things as equivalent of their share and that they will have no claim over the properties of the father thereafter. They expressed no objection to the father giving the properties to the brothers who had paid off debts of the father. Divergent decisions on the point were considered by the Supreme Court. After ferring to the view expressed by the Madras High Court in Abdul Kafoor v. Abdul Razack (supra) as to the enforcement of a renunciation by an expectant heir in the lifetime of his ancestor, the Supreme Court held, "This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit cannot bind the expectant heir's conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement".
(emphasis supplied) S.A. NO.624 of 1998 -: 18 :- The Supreme Court held in paragraph 17, "As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No.4 were estopped by their conduct, on an application of Section 115 of the Evidence Act, from claiming any right to inheritance which accrued to them, on their father's death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successionis. Upon the facts and circumstances in the case found by the courts below we hold that the plaintiff and defendant No.4 could not, when rights of inheritance vested in them at the time of their father's death, claim these as such a claim would be barred by estoppel".
(emphasis supplied)
14. The distinction that learned counsel for respondent No.1 attempted to draw in the case before the Supreme Court is that persons who made the representation and thus were estopped were parties to the deed while in the case on hand neither respondent No.1 S.A. NO.624 of 1998 -: 19 :- nor her father are parties in Ext.B1. It is also contended by learned counsel that apart from the mere alleged renunciation contained in the recitals in Ext.B1 there is nothing else to show that respondent No.1 had given up her share in the father's property. Learned counsel gave emphasis to the observations in paragraph 7 of Gulam Abbas v. Haji Kayyam Ali (supra) that, "This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit cannot bind the expectant heir's conduct in future....."
and argued that the recital in Ext.B1 cannot preclude respondent No.1 from claiming share in the property of her father, after his death. According to the learned counsel a mere renunciation is not sufficient. But the Supreme Court has also held that if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it unquestionably vests in him. What is contained in Ext.B1 is not a mere renunciation. It is followed by the husband of respondent No.1 receiving Rs.1,000/- on her behalf from her father through the appellant in lieu of her share in the family property and with that S.A. NO.624 of 1998 -: 20 :- amount purchasing an item of land (25 cents) as per Ext.B1. It is not a mere renunciation of right in the family property but a renunciation for valid consideration which was sufficient to purchase 25 cents of land. That the father of respondent No.1 is not a party to Ext.B1 makes no difference in the application of the rule of estoppel. Nor is it open to respondent No.1, she having enjoyed the benefit under Ext.B1 to contend that she is not a signatory in Ext.B1 and hence the recital therein does not bind her.
15. It is then contended by learned counsel for respondent No.1 that there is nothing on record to show that the father had acted believing the representation made by respondent No.1. The relevant recital in Ext.B1 and the evidence of appellant as D.W.1 who is also an attester in Ext.B1 show that respondent No.1 received Rs.1,000/- in lieu of her share in the property of her father. That statement must mean that sum of Rs.1,000/- was received in lieu of the share of respondent No.1 in her father's property. The recital that Rs.1,000/- is received in lieu of her right in the family property contains a renunciation of the future claim of respondent No.1 in the property of her father. The father, acting on that representation has given Rs.1,000/- to respondent No.1. It is possible that the father who died just two years after Ext.B1 did not think of making a disposition of his properties in favour of other legal heirs by a document because he has S.A. NO.624 of 1998 -: 21 :- already paid off respondent No.1 in lieu of her share in his property.
16. Now I shall consider the contention raised by learned counsel for respondent No.1 based on Exts.A4 and A5. Exhibit A5 is copy of assignment deed dated 23.8.1984 executed by respondent No.7 to respondent No.11, wife of appellant. Exhibit A4 is copy of assignment deed dated 8.3.1988 executed by respondent No.3 in favour of respondent No.9. As per these documents respective assignors assigned their 7/104 share each in the suit properties to the respective assignees. Learned counsel for respondent No.1 invited my attention to the derivation of title stated in Exts.A4 and A5 that consequent to the death of the father, Aboobacker, the assignors `etc' inherited the property. According to the learned counsel description `etc' takes in respondent No.1 also so far as she is not specifically excluded as a heir in Exts.A4 and A5. Further contention is that if respondent No.1 was excluded from inheritance, the share due to the assignors under Exts.A4 and A5 would not be 7/104 shares each but would be something more which according to the learned counsel indicated that even other legal heirs of the father did not think that respondent No.1 is excluded from inheritance. In response learned counsel for appellant contends that the word, 'etc' in Exts.A4 and A5 while mentioning the derivation of title by the assignors cannot necessarily take in respondent No.1 since excluding S.A. NO.624 of 1998 -: 22 :- respondent No.1 and assignors under Exts.A4 and A5, there are admittedly other legal heirs entitled to inherit the property of the late Aboobacker and the word, 'etc' only referred to them. It is also contended by learned counsel that at any rate Exts.A4 and A5 cannot operate as estoppel since mention of shares in it is not a representation made by the respective assignors to respondent No.1 and at any rate respondent No.1 has not acted believing the statement regarding share in Exts.A4 and A5. I find merit in that contention. A wrong or mistaken statement in Exts.A4 and A5 as to the shares of assignors when they are actually entitled to a little more does not confer any right on respondent No.1. Exhibits A4 and A5 only meant that the assignors assigned only the share stated therein. An admission, at any rate cannot confer title. The statement in Exts.A4 and A5 about the shares assigned cannot confer title on respondent No.1.
17. I do not find any admission in Exts.A4 and A5 that respondent No.1 has any subsisting title over the suit properties. There is also no plea in the plaint (filed by respondent No.1) that on account of Exts.A4 and A5 appellant or respondent Nos.2 to 11 are estopped from denying title of respondent No.1 in the suit properties. Hence contention of respondent No.1 based on Exts.A4 and A5 cannot succeed.
S.A. NO.624 of 1998 -: 23 :-
18. Learned counsel for respondent No.1 made a request to remand the case to enable respondent No.1 to adduce evidence. I have given an anxious consideration of the request. But I am not satisfied that a remand at this stage is warranted also in the light of the clear, unambiguous recital in Ext.B1 with which respondent No.1 is bound. In the written statement appellant and respondent Nos.2 to 11 had taken up necessary plea which if accepted would negative the right claimed by respondent No.1 and in spite of that, she has not gone into the witness box to give evidence. I do not find any explanation for respondent No.1 for not mounting the witness box. I do not find reason to remit the case as requested by learned counsel.
19. The discussion which I have made above leads me to the conclusion that receipt of money by an heir-apparent in lieu of his/her share in the property of his/her father during his lifetime would estop the heir-apparent from claiming share in the property of the father on his dying intestate. Respondent No.1 is estopped by her conduct from claiming share in the suit properties as she has received money in lieu of her share in the suit properties during the lifetime of her father. In the words of Coke as stated by Spencer Bower and Turner in the Law Relating to Estoppel by Representation (supra), conduct of respondent No.1 "stoppeth or closeth up the mouth" of respondent No.1 to plead that she retains a right to claim partition of the S.A. NO.624 of 1998 -: 24 :- properties of her father after his death. That, respondent No.1 did not make any claim over the suit properties till 1992 in spite of her father dying intestate on 25.2.1974 strengthens the conduct of respondent No.1 which I have stated above. Courts below have not considered the rule of estoppel in the light of the recital in Ext.B1. Judgment and decree under challenge cannot be sustained and are liable to be set aside. Substantial question of law framed is answered accordingly.
Resultantly, the Second Appeal succeeds. Judgment and decree under challenge are set aside. The suit will stand dismissed. Considering the relationship between the parties I direct them to suffer their respective costs throughout.
THOMAS P.JOSEPH, JUDGE.
vsv S.A. NO.624 of 1998 -: 25 :- THOMAS P.JOSEPH, J.
=================== S.A. NO.624 of 1998 =================== J U D G M E N T 13TH OCTOPBER, 2009