Judgment :- S.A.No.1663/89 arises out of A.S.No.243/88 on the file of the First Additional District Judge, Tiruchirapalli, which arose out of O.S.No.111/84 on the file of the Subordinate Judge, Tiruchirapalli. 2. S.A.No.80/90 arises out of A.S.No.305/88 on the file of the First Additional District Judge, Tiruchirapalli, filed against O.S.No.191/82 on the file of the Subordinate Judge, Tiruchirapalli. There was a joint trial and common judgment both in the suits as well as in the appeals. 3. The parties will be referred to as per their rank in O.S.No.191/82. 4. The suits have arisen under the following circumstances: The first plaintiff in O.S.No.191/82 is the mother of plaintiffs 2 and 3 and the first defendant. All the three plaintiffs filed the suit for partition against the first defendant and one Syed Ghouse, alleging as follows: The suit property belonged to Syed Peer Saheb, husband of the first plaintiff and father of the other plaintiffs and the first defendant. He died on 25-5-1965 leaving behind him the first plaintiff and the first defendant to inherit his properties. The first plaintiff became entitled to 2/16th share. Plaintiffs 2 and 3 became entitled to 3-1/2 by 16 shares each, while the first defendant became entitled to 9/16th share. The plaintiffs and the first defendant are co-owners and tenants in common. The first defendant being the male member, taxes were allowed to be levied in his name. Plaintiffs 2 and 3 and the first defendant obtained loan from Tiruchirapalli Irudayapuram Co-operative Credit Bank by hypothecating the suit property and the loan was discharged by the plaintiffs. The first defendant is living separately whereas the plaintiffs are residing in the suit property. The first defendant, who had defective eye sight became totally blind since 1974. Taking advantage of the same, the second defendant appears to have created some fictitious document with the intention of swallowing the suit property. He is threatening to throw away the plaintiffs from the suit property. In such circumstances, the suit has been filed for partition of the suit property and for permanent injunction to restrain the second defendant and his men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs. 5. He is threatening to throw away the plaintiffs from the suit property. In such circumstances, the suit has been filed for partition of the suit property and for permanent injunction to restrain the second defendant and his men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs. 5. The first defendant supported the case of the plaintiffs and further stated as follows: The second defendant deceived him and got a document executed in his favour in respect of the same property and filed a separate suit for setting aside the said document. The first defendant has no objection for passing of a decree for partition and for allotment of the shares of the respective parties. 6. The second defendant filed his written statement contending inter alia as follows: The plaintiffs have no right for partition and allotment of any share in their favour and they are not in possession of the suit property in their own right. The suit property belonged to the first defendant exclusively. The second defendant is a bona fide purchaser for value of the suit property. He gave a power of attorney in favour of the first defendant on 20-3-1982 for management of the suit property and for other purposes. Since he had abused the power given to him, the second defendant cancelled the power. The husband of the second plaintiff is in possession and enjoyment of the suit property only as a tenant. The second defendant issued a notice to him terminating the tenancy and calling upon him to vacate the suit property. The plaintiffs had been ill-advised to file the suit for partition. The second defendant had not played any fraud on the first defendant and got a sale deed executed in his favour. The sale deed is true and binding on the plaintiffs as well. The suit property was exclusively allotted to the first defendant's share and it was retained by him. The first defendant's father had executed a settlement deed on 4-4-1965, which would show that the suit property had been ear-marked only for the benefit of the first defendant. Separate properties were allotted to the daughters under the settlement deed. The plaintiffs accepted the mode of allotment referred to in the said settlement deed and the first defendant alone has taken the suit property and the daughters have taken the other properties. Separate properties were allotted to the daughters under the settlement deed. The plaintiffs accepted the mode of allotment referred to in the said settlement deed and the first defendant alone has taken the suit property and the daughters have taken the other properties. The plaintiffs are therefore estopped from claiming a share in the suit property by their conduct and acquiescence. They have accepted the bequest of their father and acted upon it. They cannot go behind it. They are estopped from claiming a share in the suit property. The first defendant had prescribed for title to the suit property by having been in possession and enjoyment of the same ever since the death of his father and prescribed title to the same not only by adverse possession and enjoyment, but also by ouster. The rights of the plaintiffs has got extinguished. The suit for partition is not maintainable. The first defendant is not totally blind, but is having only "Andhimalai". 7. The other suit O.S.No.111/84 was filed by the first defendant against the second defendant stating as follows: The suit property originally belonged to his father Syed Peer Saheb, who died on 25-5-1965 leaving behind him, his wife, two daughters and himself. The mother and sisters have been in possession and enjoyment of the suit property for a long time. He is a handicapped person due to defective eye sight since birth. After 1974 he became totally blind. He cannot move about without the assistance of any other person. He was not in good terms with his mother and sisters. The second defendant took advantage of that and got the sale deed executed in his favour misrepresenting that it was a mortgage deed. The plaintiff used to sell the sweets prepared by his wife in the streets, for which he needed money and the second defendant offered to arrange for a loan and lend Rs.2000/- himself if the plaintiff mortgaged his rights in the suit property. The defendant wanted to get money from his father-in-law. The plaintiff delivered the title deed in respect of the suit property to the defendant. The defendant arranged for the execution of the document and brought a set of typed papers on 9-2-1982 representing that it was a mortgage deed and required the plaintiff to sign the same and also in a small note book representing it to be endorsements of interest in advance. The defendant arranged for the execution of the document and brought a set of typed papers on 9-2-1982 representing that it was a mortgage deed and required the plaintiff to sign the same and also in a small note book representing it to be endorsements of interest in advance. The plaintiff did not suspect the defendant and accompanied him to the Registrar's Office and signed all the papers and also admitted receipt of Rs.2000/- even though the said amount was not paid. He was under the bona fide belief that what had been executed was a mortgage deed. After registration of the document, the plaintiff returned home. As the defendant did not pay the amount, the plaintiff approached him for payment. He was informed by the defendant that his father-in-law was out of Station and slowly avoided meeting him. The plaintiff became suspicious and when he questioned the defendant, he told that he was the owner of the suit property. Only then the plaintiff came to know that what he had executed and registered was not a mortgage deed, but a sale deed in respect of the entire suit property. A fraud had been played on him. He had not received even a pie towards consideration. The attempts made by the plaintiff to arrange for a mediation proved futile. He therefore lodged a complaint to the police. He was served with a notice issued by the plaintiff stating that he was cancelling the power of attorney allegedly executed in his favour. It was sutiably replied that the sale deed said to have been executed by the plaintiff is void and illegal and that the suit has been filed for a declaration that the sale deed is null and void and for setting aside the same. 8. The defendant filed a written statement disputing the various averments and stating further as follows: No fraud and no misrepresentation had been made by him. The plaintiff is not completely blind, but only he is having "Andhimalai". The suit property exclusively belonged to the plaintiff having been allotted to him by his father. At the time of executing the settlement deed dated 4-4-1965 there is specific mention in it that the suit property had been given to the plaintiff only. The suit property is not a partible property and the plaintiff is not a handicapped person. The suit property exclusively belonged to the plaintiff having been allotted to him by his father. At the time of executing the settlement deed dated 4-4-1965 there is specific mention in it that the suit property had been given to the plaintiff only. The suit property is not a partible property and the plaintiff is not a handicapped person. For the purpose of the suit alone certain allegations had been levelled. The defendant had not obtained any loan on behalf of the plaintiff. He never agreed to get a mortgage from the plaintiff for Rs.2000/-. It is false to state that the defendant brought a set of typed papers claiming to be a mortgate and required the plaintiff to sign the same and also in a small note book. The plaintiff knew that he was executing the sale deed and there were no fraudulent representations made by the defendant. The plaintiff consulted his relations, viz. his mother and sisters and then only executed the sale deed. The power in favour of the plaintiff was cancelled as the plaintiff misused the same. The suit had been filed at the instance of the husband of the plaintiff's sister, whom the defendant wanted to vacate and to get unlawful gain. The suit is liable to be dismissed. 9. In both the suits, the trial Court framed the necessary issues and on the oral and the documentary evidence, held that the sale deed in favour of the second defendant in O.S.No.191/82 executed by the first defendant in the suit is true, valid and binding, and by judgment and decree dated 30-6-1986 dismissed both the suits. 10. The plaintiffs in O.S.No.191/82 and the plaintiff in O.S.No.111/84 filed appeals. Both the appeals were dismissed by the learned First Additional District Judge by judgment and decree dated 20-12-1988. It is against that, the second appeals have been filed. 11. At the time of admission, the following substantial questions of law were framed for decision in S.A.No.1663/89: "1. Whether there has been proper construction of Ex.C-1 when the Courts below held that the plaintiff is entitled to the suit property? and 2. Whether there has been an omission to construe and a misconstruction of the material evidence on record by the Courts below when they held against the plaintiff? And S.A.No.80/90 was admitted on the same substantial questions of law formulated in S.A.No.1663/89. 12. and 2. Whether there has been an omission to construe and a misconstruction of the material evidence on record by the Courts below when they held against the plaintiff? And S.A.No.80/90 was admitted on the same substantial questions of law formulated in S.A.No.1663/89. 12. Mr.V. Raghavachari, learned Counsel for the appellants made the following submissions: There was no legally valid transfer of the suit property to and in favour of the first defendant by late Syed Peer Saheb. On a proper construction of the settlement deed marked as Ex.C-1 dated 4-4-1965, it cannot be held that the suit property had been bequeathed to the first defendant either before or after the said date. A mere expression made by a person in a deed without giving particulars and details, could not be considered as a valid transfer in law and according to the learned Counsel, the evidence on record would clearly establish that plaintiffs 2 and 3 are the co-owners of the suit property along with the first defendant and as such, they are entitled to their respective shares. 13. So far as the second appeal in the other suit is concerned, it was contended that the defendant had played a fraud on the plaintiff and got the sale deed executed by the plaintiff on a misreading that what the plaintiff was executing was only a mortgage deed. Apart from that, the plaintiff had been blind from 1974 and this had been taken advantage of by the defendant in that suit to get the property sold to him. The learned Counsel relied on the following judgments in support of his submissions: 1. RATAN LAL BORA AND OTHERS VS. MOHD. NABIUDDIN (AIR 1984 Andhra Pradesh 344) and 2. IMBICHIMOIDEENKUTTY VS. PATHUMUNNI UMMA AND OTHERS (AIR 1989 Kerala 148). 14. Per contra, Mr.M.N. Padmanabhan, learned Senior Counsel appearing for the contesting respondent, submitted that the plaintiffs were estopped from claiming any right in the suit property by virtue of their having acted on Ex.C-1 and taken the properties. It was not open to them to claim once again a share in the property that was ear-marked for the first defendant. The learned Senior Counsel also submitted that there were adequate materials to show that what the first defendant was suffering from was only "Andhimalai" and he was really not blind. The learned Senior Counsel also relied on the following judgments: 1. The learned Senior Counsel also submitted that there were adequate materials to show that what the first defendant was suffering from was only "Andhimalai" and he was really not blind. The learned Senior Counsel also relied on the following judgments: 1. GULAM ABBAS VS. HAJI KAYYAM ALI AND OTHERS ( AIR 1973 SC 554 ) and 2. SARDAR GURBAKSH SINGH VS. GURDIAL SINGH AND ANOTHER (53 MLJ 392). 15.Let us now first consider the terms of Ex.C-1. It should be stated at this stage itself that the plaintiffs have deliberately not mentioned about Ex.C-1 in their plaint. The relevant portion of the Settlement Deed Ex.C-1 runs as follows: 16. A reading of the document leaves one with absolutely no doubt that the suit property had already been set apart by the settlor under Ex.C-1 for the benefit of the first defendant. No doubt, there is no separate gift deed or any other deed executed in favour of the first defendant. But then the legal position is clear that relinquishment of future possible right of inheritance by a Muslim heir for a consideration may debar him/her from setting up his right when it actually comes into being under Section 115 of the Evidence Act. 17. In GULAM ABBAS VS. HAJI KAYYAM ALI AND OTHERS ( AIR 1973 SC 554 ) it has been held that, "If the expectant heir receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir can be debarred from setting up his right when it does unquestionably vest in him. The principle of estoppel operates in such cases." The Supreme Court referred to the decision of the Privy Council in HURMUT-OOL-NISSA BEGUM VS. ALLAHDIA KHAN (1871(17) Suth WR 103 PC): "According to the Mohamedan Law the right of inheritance may be renounced and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another." 18. It may be useful to extract from paragraph 11 of the judgment: "The renunciation of a supposed right based upon an expectancy, could not, by any test found there,be considered "prohibited". The binding force in future of such a renunciation would even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. The binding force in future of such a renunciation would even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation to be completely in consonance with it." The Supreme Court noted with approval the view of the Allahabad High Court expressed by SULEMAN, C.J. In LATAFAT HUSSAIN's case (AIR 1936 Allahabad 573) while fully recognising that "under the Mohamedan law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued." (emphasis supplied) In the same decision, the Allahabad High Court further observed: "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 Mohamedan Law." It has been further held that, "contingent reversioners can enter into a contract for consideration which may be held binding on them in case they actually succeed to the estate." 19. The Supreme Court in paragraphs 16 and 17 places the matter beyond any doubt and it is worthwhile reproducing paragraphs 16 and 17 of the said judgment: "16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsbury's Laws of England, 3rd Edition, Volume 17, pages 215-216 where we find: "A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there: "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied". We also find there: "The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied". It is pointed out there: "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements". 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 Evidence Act, from claiming any right to inheritance which accrued to them, on their father's death, covered by the deeds of relinguishment 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." 20. We have therefore to find out whether plaintiffs 2 and 3 by their conduct are estopped from claiming any share in the suit property. Ex.C-1 is dated 4.4.1965. The father died on 25-5-1965. Till 1982 they did not take any steps. On the contrary, as would be evident from the materials on record, they took possession of the properties given to them under the Settlement Deed and also discharged the mortgage loan as directed in the Settlement Deed. The second defendant purchased the property from the first defendant. It would appear that the second defendant had executed a power in favour of the first defendant for managing the property under Ex.B-22 and under Ex.B-23 he cancelled the power on 12-7-1982 as he was totally disenchanted with the first defendant. Ex.B-3 is the notice given by him to the first defendant and that set the ball rolling for the filing of the suit; O.S.No.191/82 came to be filed on 19-7-1982 and the other suit O.S.No.111/84 by the first defendant was filed on 10.10.1982. Ex.B-3 is the notice given by him to the first defendant and that set the ball rolling for the filing of the suit; O.S.No.191/82 came to be filed on 19-7-1982 and the other suit O.S.No.111/84 by the first defendant was filed on 10.10.1982. The Courts below have rightly found that the conduct of the parties in not taking any step, would show that the version of the first defendant that he had no exclusive title over the entire suit property and he is one of the co-owners of the same with his mother and sisters could only be to defeat the right, title and interest of the second defendant over the suit property. Absolutely no explanation is given as to why the plaintiffs kept quiet for over 17 years since the death of Syed Peer Saheb. They are indeed estopped under Section 115 of the Evidence Act from claiming any right in the suit property. 21. That takes us to the next question as to whether the sale deed in favour of the second defendant by the first defendant is a fraudulent document. According to the first defendant and it is also the case of the plaintiffs that the first defendant was totally blind since 1974 and that this had been taken advantage of by the second defendant. In paragraph 13 of the judgment of the lower Appellate Court, this aspect had been threadbare discussed and it has been found that the first defendant was not at all blind,but he had some defective eyesight and that the burden of establishing the plea by the first defendant had not been discharged to the satisfaction of the Court. He has himself in his evidence admitted that he can read Tamil and not English. If a person can read, it means he can see. The lower Appellate court has given cogent and convincing reasons for holding that the first defendant was in the know of things that he very well knew that what he was executing was a sale deed and not a mortgage deed. Some photographs were also produced and marked and from a glance of those photographs, it would be clear that the first defendant could not be a blind man. It is not necessary to elaborate on this. Some photographs were also produced and marked and from a glance of those photographs, it would be clear that the first defendant could not be a blind man. It is not necessary to elaborate on this. As a question of fact, both the Courts below have concurrently found that the first defendant was not blind as claimed by him and that he had consciously executed the sale deed knowing fully well that it was a sale deed and not a mortgage deed. Absolutely no interference is called for. 22. That leads us to the submission by Mr. Raghavachari based on the two judgments, one of the Andhra Pradesh High Court and the other of the Kerala High Court. 23. In RATAN LAL BORA AND OTHERS VS. MOHD. NABIUDDIN (AIR 1984 Andhra Pradesh 344) the plaintiff in the suit claimed title to suit house under oral gift from father. There was a statement by father in Court that he gifted his house orally to his son when nobody was present. It was held that the statement did not establish oral gift. The Andhra Pradesh High Court held that, "in order to establish a declaration of gift,it must be shown that the donor either in the presence of the witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property is capable of to the donee who accepted the gift. A declaration cannot be made unilaterally without making a public statement of the gift." 24. In the other decision, viz. IMBICHIMOIDEENKUTTY VS. PATHUMUNNI UMMA AND OTHERS (AIR 1989 Kerala 148), it has been held that, " 'Hiba' or gift under Mohammedan law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. By virtue of Section 129 of the Transfer of Property Act the chapter does not affect any rule of Mohammedan law and therefore 'Hiba' of subject matter of whatever value need not be registered as required by Section 123. If, however, it is reduced into writing and relates to immovable property worth Rs.100/- or more the document is compulsorily registrable under Section 17 of the Registration Act which applies. If, however, it is reduced into writing and relates to immovable property worth Rs.100/- or more the document is compulsorily registrable under Section 17 of the Registration Act which applies. On the other hand, Hiba-bil-iwaz in India being a gift for an exchange is in the nature of a sale and if the subject matter is immovable property worth Rs.100/- or more, then, it can only be by a registered instrument as provided under Section 54 of the Transfer of Property Act. Oral gift in discharge of money owed to the donee being one for consideration amounts to a sale. It is not pure and simple 'Hiba' but a Hiba-bil-iwaz and if the property of value of Rs.100/- or more is involved it can only be by a registered instrument." 25. Neither of the decisions relied on by Counsel would apply to the facts of the present case. 26. The Settlement Deed Ex.C-1 in no uncertain terms mentions about the settlor ear-marking some property for the benefit of the first defendant and by plaintiffs 1 and 2 acting on that settlement had also taken the properties given to them under the Settlement Deed and not only that, they discharged the mortgage loan of the father also as directed by him in the Settlement Deed. 27. For all the reasons stated above, I do not find any merit in the second appeals. The substantial questions of law raised are answered against the appellants. The second appeals fail and they are dismissed. However, there will be no order as to costs.