Kerala High Court
Damodaran Kavirajan And Ors. vs T.D. Rajappan on 1 November, 1991
Equivalent citations: AIR1992KER397, AIR 1992 KERALA 397, (1992) ILR(KER) 2 KER 105
JUDGMENT P. Krishnamoorthy, J.
1. Defendants 2 to 4 and an alienee of the 2nd defendant are the appellants. Plaintiff claimed 1 /4 share in the plaint schedule properties. Plaintiff and defendants 1 to 3 are the children of one Nani who died on 6-7-1964. The other defendants are persons claiming under the defendants. Plaint-'schedule items 1 to 6 and 12 to 17 absolutely belonged to Nani. Items 7 to 11 are the makkathayam properties of Nani and her children, each having an equal share over the same. In regard to items 18 to 25 the suit was dismissed by the trial Cout which was not challenged by the plaintiff and accordingly that has become final. According to the plaintiff, after the death of Nani, he is entitled to a fourth share in the plaint properties; but the defendants entered into a partition arrangement evidenced by Ext. Pl2 dated 17-3-1965 excluding the plaintiff and accordingly the present suit is filed for partition and recovery of his share.
2. The contesting defendants filed a written statement and according to them the plaintiff has no right in the plaint schedule properties. Even during the life time of Nani, the plaintiff was pestering her that he should be given a share over the properties, a dispute was pending between the mother and the son and on the mediation of some people, under Ext. D2 dated 27-9-1956 Nani settled in favour of the plaintiff and his children certain properties towards his 1/5 share over the entire properties. That gift was executed subject to the condition that the plaintiff should not claim any right in the properties of Nani after her death. On the same day, under Ext. Dl the nominal rights of the plaintiff over the makkathayam properties were released in favour of the mother. Both these documents were presented for registration by the plaintiff. The gift deed Ext. D2 was accepted and acted upon by the plaintiff thereby accepting the condition therein to the effect that he will not be entitled to claim any further share over Nani's properties. According to the defendants, plaintiff was a prodigal son and was persistently demanding for a share in the properties of his mother. Even though the mother was reluctant to give any property to the plaintiff, in order to preserve the peace of the family she executed the gift deed. According to the defendants, the conditions on which the plaintiff accepted the gift deed are binding on him and he cannot claim any share out of the estate of the mother contrary to the family arrangement evidenced by Exts. Dl and D2.
3. The trial Court came to the conclusion that Exts. Dl and D2 constitute a family arrangement and that the plaintiff is estopped from contending that he is entitled to a share over the plaint schedule properties by virtue of the conditions contained in Ext. D2 gift deed. Accordingly the suit was dismissed.
4. Against the above decree, the plaintiff filed an appeal. The lower Appellate Court came to the conclusion that there was no necessity for entering into any family arrangement. On the effect of Exts. Dl and D2 the appellate Court came to the conclusion that the plaintiff is not estopped from claiming any share in the assets left by Nani. In that view of the matter, the lower appellate Court set aside the dismissal of the suit and granted a preliminary decree to the plaintiff declaring his 14 share in items 1 to 6 and 12 to 17 and 1/10 share in items 7 to 11. Consequential directions were also given. Defendants 2 to 4 and an alienee of the 2nd defendant have come up in Second Appeal against the above decree.
5. Before this Court counsel for the appellants contended that Exts. Dl and D2 constitute a family arrangement. Though a release of the rights of the plaintiff as such was not executed, admittedly the plaintiff accepted Ext. D2 and hence he is bound by the conditions therein. One of the conditions mentioned in that document is to the effect that he will not be entitled to claim any share over the properties of Nani in future and accordingly the plaintiff is estopped from claiming any share after the death of Nani. On the other hand, counsel for the respondent-plaintiff contended that the plaintiff had only a spes successionis on the date of Exts. D2 and Dl which is not transferable under S, 6 of the Transfer of Property Act. He also contended that the documents Exts. Dl and D2 will not constitute a family arrangement and that Ext. D2 was executed only as a consideration for the plaintiff surrendering the nominal rights oVer the makkathayam properties under Ext. Dl. The question to be decided is as to whether in the facts and circumstances of the case, plaintiff is estopped from claiming any share over Nani's properties by virtue of Exts, D2 and Dl or whether the condition in Ext- P2 that he will not be entitled to any further share in Nani's properties is enforceable in law.
6. On the evidence adduced in the case, I have no doubt in my mind that Exts. Dl and D2 will constitute a family arrangement. It is not disputed that the plaintiff accepted Ext. D2, apparently a gift deed executed by deceased Nani in favour of the plaintiff settling certain properties to him, taking into account the fact that he will be entitled to 1/5th share in the properties. It has to be noted that at that time there were 5 members in the family including the mother. It has come out in evidence from Exts. D5, D6, D13, D14 and D15 letters between the mother and the son that there was a dispute between the plaintiff and the mother and that the plaintiff was pestering the mother to give him his share of the properties that belonged to her. DW 6 is an attestor to Ext. D2 and it was on his mediation that Exts. D2 and Dl were executed. He was a man aged 70 and he has categorically spoken that there were disputes between the mother and the son and that on his mediation and at the intervention of one Velayudhan the matter was settled and it was decided to execute Exts. Dl and D2. DW 7 is a person who was looking after the affairs of Nani and he also has spoken that there were disputes between the plaintiff and the mother and that the plaintiff was pestering the mother claiming his share over the properties that belonged to Nani. He stated that the plaintiff even offered sathyagraha in the house of the mother. On going through their evidence, I have no compunction in accepting their evidence as true. If that be so, it is very clear that there was a dispute between the mother and the son on the date of execution of Exts. D2 and Dl and in consequence to the mediation of DW 6 and one Velayudhan these documents were executed and certain properties given to the plaintiff on condition that he will not claim any further share in the mother's properties. It is settled law that for . entering into a family arrangement, it is not necessary that there must be an actual dispute. Even for settling a possible dispute, a family arrangement can be entered into. It is not necessary that for entering into a family arrangement with a person, he must have some pre-existing right.
7. In Kale v. Dy. Director of Consolidation, AIR 1976 SC 807 the Supreme Court has observed as follows regarding a family arrangement (at page 813):
"The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.
Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
8. Judged in the light of the principles in the aforesaid decision of the Supreme Court and also the facts which have emerged in this case, I have no hesitation to hold that Exts. Dl and D2 are part of a family arrangement entered into between the plaintiff and his mother and it is binding on him.
9. The next question for consideration is as to whether plaintiff is estopped from contending that he is entitled to any share by virtue of the provision contained in Ext. D2 gift deed. It is an admitted fact that Exts. Dl and D2 were accepted by the plaintiff. Though Ext. D2 is stated as a gift deed, from the evidence, it is clear that it was in pursuance to a family arrangement that Exts. D1 and D2 were entered into. Ext. D1 also states that the nominal rights of the plaintiff over makka-thayam properties were released in favour of the mother taking into account the gift deed so that it has to be taken that Exts. D1 and D2 are part of the same transaction. Ext. D2 is apprently a gift by the mother in favour of the plaintiff. The document recites that there are certain properties belonging to the mother and that the plaintiff and his brothers are her heirs. It is further recited in the gift deed that taking into account the value of the 1 / 5 share in the whole properties, certain properties are being gifted to the plaintiff. The settlement was made subject to certain conditions. Over the properties the plaintiff is given a life estate and after his life time it will go in favour of his children who were also the donees under Ext. D2. The document further provides that the plaintiff must pay an amount of Rs. 320/- to his younger sister and if it was not paid she was entitled to realise it charged on the properties included thereni. Clause (5) of that document is very important. That clause provides that as the plaintiff is given in advance 1/5th of the properties belonging to Nani, the plaintiff will not be entitled to claim any further share or right over the rest of the properties retained by Nani. It is on the basis of this clause that the defendants contend that the plaintiff is not entitled to claim any share over the rest of the properties. On the other hand, the contention of counsel for the respondent is that what was released by the plaintiff was only spes successionsis which is not transferable under Section 6 of the Transfer of Property Act and thus this condition is not legally enforceable.
10. After hearing counsel for the appellants and the respondent, I am of the opinion that the appellants are entitled to succeed, for the decision of the Supreme Court in Gulam Abbas v. Haji Kayyam, AIR 1973 SC 554 is a direct authority wherein a similar docment was considered by the Supreme Court and it was held that in such circumstances a person in the position of the plaintiff will be estopped under Section 115 of the Evidence Act from claiming otherwise than what is provided in such a document. In the case before the Supreme Court, the plaintiffs and the defendants were the sons of one Kadir Ali who owned certain items of properties and all of his properties would have been swallowed to liquidate the debts. Three of his sons who were defendants 1 to 3 in that case paid up the debts in order to get the properties for themselves to the exclusion of the other two sons, namely the plaintiff and the 4th defendant. In consideration thereof they executed a document of release of their rights in the father's property after receiving some cash and movable properties. By that document they gave up their possible rights in future after the death of the father. In those circumstances, the question arose as to whether such an agreement can be enforced by virtue of the provision contained in Section 6(a) of the Transfer of Property Act. In that context, their Lordships held that the principles of the Mohammedan Law are also the same as is provided in Section 6 of the Transfer of Property Act and further observed (at page 557): -
"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 consideralaion 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,"
After considering the matter elaborately their Lordships held that the plaintiff and 4th defendant in that case were estopped by their conduct on the application of the principles laid down in Section 115 of the Evidence Act. It was observed as follows (at page 558) :--
"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 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."
11. Section 6(a) of the Transfer of Property Act is a rule of substantive law, while Section 115 of the Evidence Act enacts a rule of estoppel which is one of evidence. These two provisions operate in different fields and under different circumstances. There is no conflict between the two Sections and both the Sections can be given full effect on their terms in their respective spheres. If the position as contended for by the respondent, that under no circumstances a spes successionis could be relinquished is accepted, it will make the provision contained in Section 115 of the Evidence Act nugatory and of no effect. Section 115 of the Evidence Act contains a rule of estoppel that if one person by his declaration, act or omission made another person to believe a thing to be true and that person acted upon that belief, the person making the representation shall not be allowed to deny that representation on the faith of which the other person acted. The Supreme Court has considered the effect of Section 6(a) of the Transfer of Property Act on Section 43 of the same Act which also embodies a rule of estoppel. In that context, in Jumma Masjid v. Kodimaniandra Deviah, AIR 1962 SC 847, their Lordships held (at page 850):
"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 Section 43 would destroy its utility to a large extent."
The same principles will apply in regard to an estoppel as embodied in Section 115 of the Evidence Act as well.
12. From the aforesaid decision it is clear that in such circumstances the principle of estoppel mentioned in Section 115 of the Evidence Act will apply if relinquishment was made by one of the parties of his right to inherit in future for a consideration. On a reading of Ext. D2 it is clear that the mother absolutely settled her properties in favour of the plaintiff only for the consideration that the plaintiff relinquished his right to future share in the properties left by her. The fact that the plaintiff gave up his right of inheritance for a consideration, namely the immediate obtaining of certain properties towards his 1 / 5 share will estop him from claiming any share over the rest of Nani's properties which are plaint schedule properties. Moreover, the plaintiff has accepted and acted upon Ext. D-2. There is a clear statement in Ext. D-2 that the plaintiff will not be entitled to claim any share over Nani's properties. Plaintiff having accepted Ext. D-2 with those conditions cannot be allowed later to turn round and say that he will only receive the benefits given under the document and that he is entitled to discard the disabilities incurred by virtue of that document. This is especially so when Exts. D-2 and D-1 were executed in pursuance to a family arrangement. See Thayyullathil Kunhikannan v. Thayullathil Kalliani, 1990 (1) Ker LJ 114 : (AIR 1990 Ker 226).
13. Counsel for the respondent submitted that on going through Exts. D-l and D-2 it can be seen that the gift deed was executed by the mother only in exchange for surrendering the rights of the respondent-plaintiff over Makkathayam properties to which he was also entitled to a share on that day. But it is not possible to accept that contention. Exts. D-l and D-2 are part of the same transaction. Ext. D-l itself recites that the release was executed by him taking into account the bequest made under Ext. D-2. These two have to be treated as a composite transaction and I have no doubt in my mind that the intention of the parties was that the plaintiff should not claim any right in future over the mother's properties. Thus, on a consideration of the entire evidence and the legal position, I have no hesitation to hold that the trial Court was right in non-suiting the plaintiff and the lower appellate Court was wrong in passing a preliminary decree for partition in favour of the plaintiff.
14. In the result, I set aside the judgment and decree of the lower appellate Court, restore that of the trial Court and dismiss the suit. In the peculiar circumstances of the case, the parties will bear their costs.