Krishna Pillai v. Damodara Pillai — 1952 DIGILAW 15 (KER)

Judgment :- 1. The 2nd defendant is the appellant. The suit is for declaration of the plaintiff's title to one half of the plaint properties and for recovering possession of the same after setting aside a sale deed executed by the 1st defendant in favour of the 2nd defendant and also the decree and Court sale in O.S. No. 1006 of 1108 of the Thiruvalla Munsiff's Court. The plaint properties belonged to one Easwara Pillai. The plaintiff is his son by his 1st wife, the 1st defendant is his 2nd wife. The marriage between Eswara Pillai and the plaintiff's mother was dissolved in 1105 and after that the former married the 1st defendant. The plaintiff's mother died after some time and subsequently Easwara Pillai died intestate. After the death of Easwara Pillai the 1st defendant executed the sale deed Ext. A in favour of the 2nd defendant for the plaint properties. Easwara Pillai had executed an hypothecation bond charging plaint items 1 and 2. O.S. No. 1006 of 1108 was filed by defendants 3 and 4 for the money due under that bond. Ext. B is the copy of the judgment in that case and Ext. C is the copy of the decree. It is alleged that the plaintiff who was a minor on the date of the suit was not properly represented in the suit and that the decree and execution sale are not binding on him. On these grounds the plaintiffs sued for recovery of possession of one half of the plaint properties with mesne profits. 2. Defendants 2,3 and 4 contested the suit. The 3rd defendant died during the pendency of the suit and defendants 13 and 14 were impleaded as his legal representatives. The 2nd defendant contended that Ext. A is a valid sale deed supported by consideration and good faith, that Easwara Pillai and the mother of the plaintiff had entered into an udampady Ext.1 by which the plaintiff ceased to have any interest in the properties of Easwara Pillai, that after the death of Easwara Pillai the 1st defendant alone was entitled to the plaint properties and that she was therefore competent to execute the sale deed. It was also contended that the 2nd defendant had discharged certain liabilities that were subsisting on the properties and that in any case he was entitled to get back the amounts utilised by him for discharging these liabilities. He also claimed value of improvements and denied liability for mesne profits. Defendants 3 and 4 contended that the decree and execution sale in O.S. No. 1006 of 1108 were valid and binding on the plaintiff that the plaintiff was properly represented in that suit and that the decree and sale were not liable to be set aside. 3. The Court below held that the plaintiff's right to inherit the properties of his father was not extinguished by the udampady Ext.1 executed by his father and mother. It was therefore held that the plaintiff was entitled to one half of the plaint properties and that the sale deed Ext. A executed by the 1st defendant was not valid and binding on the plaintiff's share in the properties. So far as the decree and court sale in O.S. No. 1006 of 1108 were concerned, the Court below held that they were valid and binding on the plaintiff. Plaint items 1 and 2 were sold for the decree debt in that case and the plaintiff was therefore not allowed to recover possession of those properties. Some of the plaint properties were outstanding on mortgage executed by Easwara Pillai. Plaintiff was allowed to recover possession of one half share in plaint items 4 and 7 and in items 5 and 6 excluding 51 cents. Mesne profits were allowed from the date of decree at the date of Rs. 160 per year, and the parties were ordered to suffer their respective costs. 4. The main point urged in this appeal is that the plaintiff's right in the plaint properties has been extinguished by the udampady Ext.1 executed by his father and mother. The plaintiff was only 3 years old on the date of Ext. 1. The document was not executed by his mother in her capacity as the guardian of the plaintiff. That was a deed of divorce. Easwara Pillai paid Rs. 200 to the plaintiff's mother on the date of Ext.1 and directed her to maintain the plaintiff with the interest on that amount until he attained majority and to pay the amount to him thereafter. That was a deed of divorce. Easwara Pillai paid Rs. 200 to the plaintiff's mother on the date of Ext.1 and directed her to maintain the plaintiff with the interest on that amount until he attained majority and to pay the amount to him thereafter. It was also provided that neither the plaintiff nor his mother would be entitled to any share in the properties of Easwara Pillai and that Easwara Pillai also would have no right in the properties of the plaintiff's mother. It is contended that by reason of his udampady the plaintiff ceased to have any interest in the properties of Easwara Pillai. 5. It is admitted that Easwara Pillai died intestate and under the Nayar Act the plaintiff who is the son of Easwara Pillai is entitled to one half of his assets while the 1st defendant his widow is entitled to the other half. The question for consideration is whether the plaintiff's right to inherit the half of the assets of Easwara Pillai has been extinguished by Ext. 1. On the date of Ext.1 the plaintiff had no right in the properties of his father. He had only a mere chance of succession in case Easwara Pillai would die intestate, a spes successions. This is clearly not an interest in property which is capable of being transferred. S. 6(a) of the Transfer of Property Act provides that "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." The law was stated thus in In Re Parsons, (1890) 45 Ch.D 51: "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 life time of such person no one can have more than a spes successions, an expectation or hope of succeeding to his property". Reference may also be made to the decision in Samsuddin v. Abdul Hussain (31 Bom.165). It was a case in which A had two sons and a daughter. In consideration of Rs. During the life time of such person no one can have more than a spes successions, an expectation or hope of succeeding to his property". Reference may also be made to the decision in Samsuddin v. Abdul Hussain (31 Bom.165). It was a case in which A had two sons and a daughter. In consideration of Rs. 9000 paid to the daughter by A the former executed a release of her right to share in the inheritance to A's property. A subsequently died intestate. When the daughter claimed her share in the inheritance the sons resisted the claim on the basis of the release deed executed by her. It was held that it was no defence as the release was a transfer of a spes successionis. To the same effect are the decisions in Abdool v. Goolam, 30 Bom. 304; Asa Beevi v. Karuppan Chetty, 41 Mad 365 and Marangani v. Nagur Meera 24 MLJ 258. In Raman v. Raman v. Raghava Varma Raja, 27 TLJ 523, a partition deed in a Nayar tarwad provided on any one of the branches becoming extinct the properties allowed to that branch should devolve on the remaining branch. The plaintiff's wife who was the last member of one of the branches died intestate. The sole arriving member of the other branch was the 1st defendant. The plaintiff claimed the properties of the extinct branch under S.19 of the Nayar Act. The 1st defendant contended that under the provisions of the partition deed the properties devolved on him. It was held by the Travancore High Court that the stipulation in the partition deed was opposed to the express provision in S.19 of the Nair Act and that it did not affect the plaintiff's right to inherit the properties under that Act. 6. It is thus clear that Ext.1 has not extinguished the plaintiff's right to inherit one half of the properties of his father under S.11 of the Nayar Act. Ext. A cannot affect the interest of the plaintiff in the plaint properties. It was therefore to be set aside to the extent of the plaintiff's one half share. 7. It was however argued on behalf of the appellant that he has discharged certain debts binding on the properties and that in any case he is entitled to reimbursement of the amount utilised by him for discharging those debts. It was therefore to be set aside to the extent of the plaintiff's one half share. 7. It was however argued on behalf of the appellant that he has discharged certain debts binding on the properties and that in any case he is entitled to reimbursement of the amount utilised by him for discharging those debts. But no evidence has been adduced by the 2nd defendant in the court below to prove his contention. Neither did the 2nd defendant go into the witness box to swear to this case. He has however produced in this Court certain documents to show that he has discharged some liabilities. One such document is the copy of the decree in O.S. No. 226 of 1113 and the other is the copy of the execution diary in that case. The third document is a chitty hypothecation bond which purports to have been executed by the plaintiff's father and contains an endorsement to the effect that the 2nd defendant paid Rs. 122 on 21.10.1110 in satisfaction of the claim under that bond. The respondent's learned advocate strongly objected to the admitting of those documents in evidence in this Court. No explanation was given by the appellant for not producing these documents in the Court below. The case has been pending long in the Court below for evidence and there is no reason why the documents should not have been produced in that Court. We therefore do not admit in evidence those documents. The plaintiff's learned counsel however conceded that the plaintiff is prepared to give credit for one half of the amount paid by the 2nd deft. in satisfaction of the decree in O.S. No. 226 of 1113. It is admitted that the 2nd defendant paid Rs. 114 towards this decree debt on 3.4.1119. The plaintiff's learned advocate agreed to give credit for one half of that amount, namely Rs. 57. The plaintiff will therefore deposit this amount in the Court below before recovering possession on his share in plaint items 5 and 7 which are in the possession of the 2nd defendant. 8. With regard to the claim for value of improvements, no evidence was adduced by the 2nd defendant in the Court below to prove that he has effected improvements in the properties in his possession. There was no application for the issue of a commission. 8. With regard to the claim for value of improvements, no evidence was adduced by the 2nd defendant in the Court below to prove that he has effected improvements in the properties in his possession. There was no application for the issue of a commission. In the written statement it is not stated what the nature of the improvements is and what its value would be. In the circumstances we do not think it necessary to give the 2nd defendant a further opportunity to take out a commission for assessing value of improvements. 9. With regard to mesne profits the Court below has not found what the mesne profits from items 5 and 7 would come to. These are the only items in the possession of the 2nd deft. In the plaint it was alleged that the mesne profits from all the plaint properties would come to Rs. 100. But when the plaintiff was examined he swore that the mesne profits would come to Rs. 300 per annum. The Court below allowed future mesne profits at the rate of Rs. 160 per annum. There is no basis for this award. The plaintiff has not adduced any evidence to prove the mesne profits of the properties. The 2nd defendant's case is that the mesne profits of items 5 and 7 will be only Rs. 25 a year. In the absence of any reliable evidence relating to the matter we do not think that anything more than the amount admitted by the 2nd defendant can be awarded as mesne profits. The Court below did not award past mesne profits and no objection memorandum was filed by the plaintiff relating to this matter. 10. With regard to the mesne profits of the properties in the possession of defendants 3,13 and 14 there is absolutely no evidence in the case. In the circumstances the plaintiff can be allowed mesne profits only of items 5 and 7 at the rate admitted by the 2nd defendant ie., Rs. 25 a year. The plaintiff can claim only one half of that. Mesne profits will be allowed only from the date of deposit by the plaintiff of the sum of Rs. 57 mentioned above. Subject to these modifications the decree of the Court below is confirmed and this appeal is dismissed. The parties will pay and receive costs in this Court in proportion to their success. Decree modified.