Madras High Court
Mookammal vs Subramanian on 19 November, 2009
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19/11/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A.(MD)No.342 of 1998 Mookammal ... Plaintiff/ Appellant/ Appellant/ Vs. 1.Subramanian 2.Petchithai Ammal 3.Esakkithai Ammal 4.Arumugha Thai Ammal 5.Viswasam 6.D.John Samuel ... Defendants/ Respondents/ Respondents/ PRAYER The second appeal is filed under Section 100 C.P.C. against the judgment and decree dated 29.08.1997 made in A.S.No.21 of 1995, on the file of the learned Principal District Judge, Tuticorin confirming the judgment and decree dated 23.09.1994, made in O.S.No.289 of 1989, on the file of the learned District Munsif, Srivaikuntam. !For Appellant ... Mr.K.Srinivasan ^For Respondents ... Mr.K.Govindarajan for R1 For R4 and R5 ... No appearance :JUDGMENT
The plaintiff is the appellant in the suit and the appeal is preferred against the judgment and decree dated 29.08.1997, in A.S.No.21 of 1995, on the file of the learned Principle District Judge, Tuticorin, confirming the judgment and decree dated 02.03.1994 in O.S.No.289 of 1989 on the file of the District Munsif Court, Srivaikundam.
2.The suit is filed for partition and for mesne profits. According to the plaintiff,the first schedule of the suit property belonged to one Marimuthu Thevar, the father of the plaintiff, who was doing brokerage and the income was not sufficient. The husband of the plaintiff assisted the said Marimuthu Thevar and with their joint efforts, the second schedule property was purchased in the name of Mrimuthu Thevar and in the 4th item, Marimuthu Thevar constructed two houses. The third schedule property belonged to the mother of the plaintiff, namely, Petchiammal and she died in the year 1957. Marimuthu Thevar had executed a registered 'will' dated 20.04.1970 bequeathing the properties to others against the interest of the plaintiff. He revoked the will and on such revocation, Marimuthu Thevar insisted the plaintiff to execute a release deed in his favour. The said release deed is not valid as it was executed under coercion and undue influence. Marimuthu Thevar died in the year 1988 leaving behind the plaintiff and the defendants 1 to 5 as his legal heirs. Therefore, the plaintiff is entitled for half share in the first schedule and 1/6th share in the second and third schedule properties. The other defendants are subsequent transferees.
3.The suit was resisted by the defendants 1 to 5 stating that the plaintiff has relinquished her right under release deed dated 06.01.1971 which is for a valuable consideration and therefore, she is not entitled for any share. The trial Court on analysing the oral and documentary evidence found that the release deed is true and valid and negatived the contention of the plaintiff that it was created under coercion and undue influence and also negatived the plea of the plaintiff that the release deed was hit by the Section 6 of Transfer Property Act and thus dismissed the suit. The first appellate Court also agreed with the trail Court and dismissed the appeal. Aggrieved by the same, the plaintiff has preferred the present appeal on the following grounds:
"1.The courts below erred in law in its interpretation of Section 6 of the Transfer of Property Act.
2.The courts below overlooked that any transfer covered by Section 6 of the Transfer of Property Act is contrary to law and as such a transfer cannot be validated on the ground of estopped under Section 115 of the Evidence Act, on the Principle that there cannot be any estoppel against statutes.
3.The courts below overlooked, indisputably on the date of Ex.A.4, that the release and the appellant, the releasor, knew the fact that the appellant is not entitled to a share and that she is only a heir apparent and as such there is no question of estoppel arises".
4.On admission of the second appeal, the following substantial question of law is formulated:
"Whether the courts below is right in holding that Ex.A.4 is valid and binding on the appellant especially when the said Ex.A.4 is hit by Section 6 of the Transfer of Property Act?
5.Heard Mr.K.Srinivasan, the learned counsel appearing for the appellant/plaintiff and Mr.K.Govindarajan, learned counsel appearing for the respondents /defendants.
6.It is admitted that the suit property originally belonged to one Marimuthu Thevar and his wife Petchiammal. It is also admitted that on 06.01.1971, there were certain documents came to be executed by Marimuthu Thevar and the plaintiff. Marimuthu Thevar executed a deed of transfer in favour of plaintiff's husband Shunmuga Thevar under Ex.A.1. Under Ex.A.5, Marimuthu Devar seems to have revoked the earlier 'will' Ex.A.3. The plaintiff has executed a gift deed in favour of said Marimuthu Thevar. Under Ex.A.4 and she had also executed the release deed relinquishing her rights in the properties of her father which she may inherit.
7.The learned counsel appearing for the appellant would submit that the release deed dated 06.01.1971 is not valid as it was executed under coercion and undue influence. He also pointed out that there was an earlier will executed by Marimuthu Thevar under Ex.A.2 and only to cancel the said 'will', the plaintiff was compelled to execute the release deed. The learned counsel also pointed out that the plaintiff is a sharer who would be succeeding to the estate of Marimuthu Thevar and the release deed is not valid under Section 6(a) of the transfer of property Act, 1982.
8.The learned counsel relied upon the judgment in Rengaswami Bali vs. Maruthayee Ammal and another reported in 2007(4) TLNJ 44 (Civil), wherein this Court has held that, "12.At this juncture, the Court must look into Section 6(a) of the Transfer of Property Act, wherein it reads as follows:
'The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a Kinsman, or any other mere possibility of a like nature, cannot be transferred'.
13.In the instant case, after the death of Panchalai Ammal, her husband viz., Palaniandi Naicker has succeeded her estate. The right of Palaniandi Naicker is nothing but Spes Successions or hope of Successions. As per Section 6(a) of the Transfer of Property Act, the same cannot be transferred. Therefore, on the basis of Section 6(a) of the Transfer of Property Act, it is needless to say that Ex.B.3 is a void document. Since Ex.B.3 is a void document, the defendant has no manner of right, title and interest over the suit A schedule property".
9.He also relied upon another judgment in Gulam Abbas vs. Haji Kayyam Ali and ohters reported in AIR 1973 SUPREME COURT 554 (V 60 C 114), the Hon'ble Supreme Court has held 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. 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 estoppal remains untouched by this statement".
10.The learned counsel also relied upon the judgment in Mohd.Noor and others vs. Mohd.Ibrahim and others reported in (1994) 5 SUPREME COURT 562 for the proposition as to the right of ownership.
11.On the contrary, the learned counsel appearing for the respondent would submit that release of right by one of heir apparent for a consideration is not opposed to law and the same has been upheld by the Supreme Court in Jumma Masjid vs. Kodimaniandra Deviah and others reported in AIR 1962 SUPREME COURT 847(V 49 C 119), wherein it was held, "Where a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of S.43, if he has taken the transfer on the faith of that representation and for consideration.
Such a construction of S.43 has not the effect of nullifying S.6(a). Section 6(a) and S.43 relate to two different subjects, and there is no necessary conflict between them. Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while S.43 enacts a rule of estoppel which is one of evidence. 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 S.43 would destroy its utility to a large extent".
12.The simple point arises for consideration is, whether the release deed dated 06.01.1971 under Ex.A.4 equivalent to Ex.B.3 is hit by Section 6(a) of the Transfer of Property Act and relinquishment of future succession is valid ?
13.Section 6(a) of the Transfer of Property Act reads as follows:
"The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a Kinsman, or any other mere possibility of a like nature, cannot be transferred."
14.It is a settled proposition that "Spes successionis" or hope of successions is not transferable under Section 6(a) of the Transfer of Property Act. According to the appellant relinquishment of her right under the release deed is "Spes successionis"
15.The judgment relied on by the learned counsel appearing for the appellant reported in 2007(4) TNLJ 44(Civil), is a case relating to a transfer effected by a person who subsequently obtained such interest in the property transferred. The question before the single Judge was whether section 43of the Transfer of Property Act (here in after referred as Act) is applicable or not and the learned Judge also relied on section 6 of the Act and held that the chance of a heir apparent succeeding to a estate cannot transfer the title to the transferee. The right transferred was only spes successionis or hope of succession.
16.In the present case, the heir apparent has relinquished her future interest in the property for a consideration. In a similar situation, the Supreme Court in AIR 1973 SCC 544 (cited supra), has discussed in detail about section 6(a) and Section 43 of the Transfer of Property Act.
17.Section 43 of the Transfer of Property Act reads as follows:
43.Transfer by unauthorised person who subsequently acquires interest in property transferred.- Where a person [fraudulently or] erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option".
18.It is also necessary to refer section 115 of the Indian Evidence Act Section 115 of the Evidence Act reads as follows:
115.Estoppel.- When one person has, by his/her 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.
19.Admittedly in the present case, three transactions took place on 06.01.1971, (I) Marimuthu Thevar revoked the 'will' dated 20.04.1970, (ii) the plaintiff executed a gift deed and (iii) Marimuthu Thevar executed a gift deed in favour of the plaintiff's husband . The plaintiff has executed the release deed under Ex.A.4 in favour of Marimuthu Thevar relinquishing her right. Therefore, the entire transaction, taken as a whole, would show that it is a family arrangement between the parties. The relinquishment is for a proper consideration.
20.The fair and equitable family arrangement is finally binding on the parties to the same. Though, the transfer of the chance of heir apparent succeeding to estate is prohibited under Section 6(a) of Transfer of Property Act. There is nothing to prevent for relinquishing a claim to inheritance for a realisation of a consideration in order to avoid future disputes. In that event, once the heir apparent relinquished the possibility of her right of inheritance for a consideration, the same is not covered under Section 6(a) of the Transfer of Property Act, but, the principle of estoppel under Section 115 of the Evidence Act would apply.
21.In Gulam Abbas vs. Haji Kayyam Ali and ohters reported in AIR 1973 SUPREME COURT 554 (V 60 C 114), the Hon'ble Supreme Court has held 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. 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 estoppal remains untouched by this statement".
22.In my considered opinion, the courts below have rightly found that the plaintiff is estopped from claiming any right of the properties of the Marimuthu Thevar and therefore, has rightly negatived her claim. I have no reason to interfere with the findings of the courts below. The questions of law are answered accordingly, In the result the Second Appeal is dismissed. No costs.
ns To
1.The Principal District Judge, Tuticorin.
2.The District Munsif, Srivaikuntam.