Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 758 (KER)

R. Subbaraj v. S. Pandiyammal

2013-08-27

N.K.BALAKRISHNAN

body2013
Judgment : 1. The plaintiff in a suit for partition is the appellant. The plaintiff and the defendants are the children of Raju Chettiar and Smt. Parvathiamma. Raju Chettiar died in the year 1994. Parvathiamma died in 1995. The plaint A schedule property measures two acres. It is an unassigned government land with a building thereon. The B schedule property measures two cents, which is situated in Uthamapalayam in Tamil Nadu. The plaintiff contended that the plaint schedule properties are liable to be partitioned into three shares and one such share is to be allotted to the plaintiff/appellant. The suit was resisted by the defendants projecting Ext.B1 which is a deed of relinquishment executed by the appellant. 2. The trial court accepted the contentions raised by the defendants and dismissed the suit. The appellate court confirmed that finding and dismissed the appeal. 3. The following substantial questions of law have been re-framed for consideration: (1)Whether Ext.B1 document is hit by section 6 (a) of Transfer of Property Act? (2) Does not Ext.B1 show relinquishment of the chance of an heir-apparent succeeding to an estate, and if so, is not the plaintiff/appellant entitled to share in the plaint schedule property? 4. The learned senior counsel appearing for the appellant would submit that the courts below failed to take note of the fact that the plaint schedule property was actually available for partition and that Ext.B1 cannot be treated as a relinquishment deed. Section 6(a) of the Transfer of Property Act prohibits transfer of the chance of an heir apparent succeeding to an estate and as such Ext.B1 is invalid and as such the courts below should not have relied upon Ext.B1 to hold that the plaintiff's right was lost by relinquishment as pleaded by the defendants, it is argued by the learned senior counsel. The courts below should have found that the appellant's right to succeed would arise only on the death of his father and mother and no such right did exist as on the date of Ext.B1 so as to transfer or relinquish the same, it is further argued. It is further submitted by the learned senior counsel that the courts below went wrong in interpreting Ext.B1. The undertaking made by the appellant in Ext.B1 cannot have the effect of abandonment or relinquishment of his future claims in the suit properties. It is further submitted by the learned senior counsel that the courts below went wrong in interpreting Ext.B1. The undertaking made by the appellant in Ext.B1 cannot have the effect of abandonment or relinquishment of his future claims in the suit properties. The learned senior counsel would also submit that the finding entered by the courts below that the appellant relinquished his right in lieu of his share is legally unsustainable. Hence the appellant contended that the plaint schedule property is liable to be partitioned. 5. Sri. T.V. George, the learned counsel appearing for respondents has strongly resisted the submission made on behalf of the appellant pointing out the recitals in Ext.B1 document would clearly go to show that it was executed by the appellant in consideration of the value of the share which the appellant might be entitled to get as a legal heir of his parents. The learned counsel submits the recitals in Ext.B1 with regard to the same, which have been extracted by the lower appellate court in paragraph 10 of the judgment, would make it undoubtedly clear that the value of share which the appellant was entitled to get was determined in the presence of the mediators and agreeing to the terms suggested by the mediators, he consented to receive the amount as the value of his share which he would be entitled to get and therefore, the argument to the contrary advanced by the learned counsel for the appellant cannot be sustained. 6. The recitals in Ext. B1 would show that with regard to the share which the appellant was entitled to get, the mediators intervened and they decided what should be the value of his share and what was determined by them as the value of the share was agreed upon and accepted by the appellant. From the personal earnings of the appellant's father, the appellant obtained Rs.1,000/-as the value equivalent to his share in the joint family property, movable and immovable and the property which his father might acquire in future. The appellant thus received the amount mentioned above as his legal and legitimate share and on acceptance of that share he relinquished his claim in respect of the properties held by his father. The appellant thus received the amount mentioned above as his legal and legitimate share and on acceptance of that share he relinquished his claim in respect of the properties held by his father. It was further made clear in Ext.B1 that the appellant will not raise any claim (share) in the property belonging to his father and which his father might acquire in future and that he (appellant) or his legal heirs will not stake any claim in respect of any such property. 7. Now the crucial question for consideration is whether Ext.B1 is invalid on the premise that what was transferred was the chance of an heir apparent succeeding to an estate, or any other mere possibility of a like nature. According to the learned senior counsel, Ext.B1 would show that what was relinquished was only the chance of an heir apparent and as such it is not a property which can be transferred under Sec.6(a) of the TP Act. According to the learned senior counsel, Sec.6(a) of the TP Act is an embargo against the transfer of mere chance of an heir apparent. The courts below found that Ext.B1 is a relinquishment deed executed by the appellant in consideration of having received his due and legitimate share of the property which he (the appellant) was entitled to get on the death of his father. 8. There is no dispute regarding the proposition that the chance of an heir apparent succeeding to an estate cannot be transferred under Sec.6(a) of the TP Act. 8. There is no dispute regarding the proposition that the chance of an heir apparent succeeding to an estate cannot be transferred under Sec.6(a) of the TP Act. It was held by the Full Bench of Madras High Court in Asha Beevi v. Kruppan Chetty XLV Indian cases 35, thus: “There is a large preponderance of authority in favour of the view that a transaction or a renunciation of the right of inheritance before that right vests is prohibited under the Mahomedan Law and that as the rules of Mohammedan Law are not affected by the Transfer of Property Act it is unnecessary to consider whether this transfer or renunciation would not also be invalid under the provisions of Section 6 of the Transfer of Property Act itself.” Under Mohammedan Law: “a Muhammadan heir may by his conduct be estopped from claiming the inheritance he has agreed to relinquish if the release was part of a compromise or family settlement and if he has benefited by the transaction.” It was also held therein: “If the relinquishment is in the nature of a gift or transfer of a contingent right then of course it would be void under Sec.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 Sec.6 of TP Act at all.” In Kochunni Kochu Muhammed v. Kunju Pillai Muhammed (1956 KLT 96) it was held: “For a valid family settlement it is not necessary that there should be a dispute in existence when the settlement is made. If in order to prevent the arising of disputes and in order to secure peace and happiness in the family the parties arrive at a settlement among themselves the settlement arrived at must be deemed to be valid.” 9. Relying on the aforesaid decision it is argued by Sri. T.V. George, the learned counsel for the respondents, that the renunciation of the right to inherit is contained in Ext.B1 and that such undertaking or consent was given by the appellant for good consideration; namely, the sum of Rs.1,000/- received by him from his father. 10. Relying on the aforesaid decision it is argued by Sri. T.V. George, the learned counsel for the respondents, that the renunciation of the right to inherit is contained in Ext.B1 and that such undertaking or consent was given by the appellant for good consideration; namely, the sum of Rs.1,000/- received by him from his father. 10. In the decision cited supra, one of the properties of Methar was handed over to the plaintiff for her residence and maintenance till her death and that fact was stated in the document. Therefore, it was held by the Division Bench in the aforesaid case that the said document was part of a valid family settlement and that the agreement made by the plaintiff contained in that document not to claim a right of her inheritance in Methar's estate, after his death is supported by good consideration and has to be given effect to. 11. The decision of the Allahabad High Court in Ehsanul Haq v. Mohammed Umar and another (AIR 1973 Alahabad 425) has also been relied upon by the learned counsel for the respondent. There, it was held: “In my view, the question must be answered in the negative as in this case the possibility of the defendant's (No.1) acquiring the property he had agreed to sell, was neither so remote nor of the same category as enumerated in Section 6(a) of the Transfer of Property Act which deals with cases of the nature of “Spes Successionis” a mere chance of succession.” 12. The learned counsel for the respondent would also refer to Sec.115 of Indian Evidence Act which deals with estoppel. Sec.115 reads: “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.” 13. Sec.115 reads: “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.” 13. The Hon'ble Supreme Court in Jumma Masjid v. Kodimaniandra Deviah (AIR 1962 SC 847) held, while referring to Sec.6(a) and 43 of the TP Act: “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”. 14. It was held by the Hon'ble Supreme Court in Gulam Abbas v. Haji Kayyam Ali (AIR 1973 SC 554): “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 i nter 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) 15. It was further held by the apex court in the very same decision thus: “As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No.4 were stopped by their conduct, on an application of S.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”. 16. Therefore, according to the learned counsel for the respondent, since he had received the consideration of Rs.1,000/- in lieu of his share and relinquished all his rights which he was to succeed in future, he is estopped from raising a claim thereafter, applying the principle that one cannot approbate and reprobate. Therefore, it is argued by the learned counsel for the respondents that here, it is not a bare renunciation of an expectation to inherit but it was a renunciation supported by consideration and his conduct is such that he is estopped from claiming share in the property left behind by his father as the appellant had already renounced his right in the family property for valid consideration. Therefore, according to the learned counsel for the respondent, it is a clear case where the appellant is estopped from contending otherwise since he had relinquished his right on receipt of valid consideration, the consideration in lieu of his share of his father's property, and so after the death of the father he is estopped from claiming share in the property left behind by his father. 17. The decision of the Madras High Court in Mookammal v. Subramanian and others – (2010) 2 MLJ 576 has also been relied upon by the learned counsel for the respondents. In that case the only point that arose for consideration was whether the release deed, Ext.A4 was hit by section 6(a) of T.P. Act and whether the relinquishment of future succession is valid. That 'Spes successionis' or mere hope of succession is not transferable under section 6(a) of T.P. Act is beyond any doubt. But the question here is whether the relinquishment made under Ext.B1 of the appellant's right can be characterised as 'spes successionis'. In the case cited supra it was held that the fair and equitable family arrangement is finally binding on the parties to the same, though, the transfer of mere chance of an heir apparent succeeding to an estate is prohibited under section 6(a) of T.P. Act. In the case cited supra it was held that the fair and equitable family arrangement is finally binding on the parties to the same, though, the transfer of mere chance of an heir apparent succeeding to an estate is prohibited under section 6(a) of T.P. Act. It was also held that there is nothing which prevents relinquishment of claim of inheritance for a consideration in order to avoid future disputes. Therefore, according to the learned counsel, the aforesaid decision is also applicable to the facts of this case. 18. The learned counsel for the respondents has also relied upon the decision of the Division Bench in Thayyullathil Kunhikannan v. Thayyullathil Kalliani – AIR 1990 Kerala 226 in support of his submission that a party taking advantage under family arrangement is estopped from resiling from such arrangement. There the parties relied upon Ext.B5 – the deed of partition; the parties had accepted and acted upon the partition deed (Ext.B5) and dealt with the properties in the light of the title derived thereunder. Thus, it was held by the Division Bench that Ext.B5 was liable to be accepted and enforced as a family arrangement binding on the plaintiff and defendants 1 and 2 and that the plaintiff cannot claim any partition in derogation of the recitals in, and the arrangements made in Ext.B5. It was held thus: "The recitals in the document or arrangement are evidence as against the parties to the document. If it is a settlement deliberately made and parties have acted upon the document, the recitals on the faith of which the other parties have acted, induced on the strength of the facts, and the position adumbrated in the document operate as an estoppel in favour of the parties." 19. It was held by the Hon'ble Supreme Court in Kale v. Dy. Director of Consolidation – AIR 1976 SC 807 thus: "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. The members who may be parties to the family arrangment must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. The members who may be parties to the family arrangment 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 his claims or title in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the Courts will find no difficulty in giving effect to the same." 20. The learned counsel submits that since the appellant had given up his right of inheritance for a consideration; namely, Rs.1,000/-, which was immediately obtained by him from his father towards his due share, it would certainly estop him from claiming any share over the plaint schedule property. There is no doubt that ordinarily there cannot be a transfer of spes successionis, but there may be exceptions which may be covered by a deed of family settlement or a deed of arrangement executed after receiving consideration for a future share, in which case, it would operate as estoppel against the expectant heir who claims any share in the estate of the deceased. 21. It was also held by this court in Damodaran Kavirajan and Others v. T.D. Rajappan – AIR 1992 Kerala 397 that there is no conflict between section 6 of Transfer of Property Act and section 115 of the Evidence Act since these two provisions operate in different fields and under different circumstances. The plea that under no circumstances spes successionis could be relinquished if accepted, it will make the provision contained in section 115 of the Evidence Act nugatory and of no effect. Section 115 makes it clear that if a 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. 22. The recitals in Ext.B1 would leave no doubt that the relinquishment was made by him on receipt of consideration of Rs.1,000/- from his father for his future share in the property. 22. The recitals in Ext.B1 would leave no doubt that the relinquishment was made by him on receipt of consideration of Rs.1,000/- from his father for his future share in the property. The courts below rightly accepted the contention so raised by the respondents and held that the plaintiff/appellant is not entitled to claim any share in the plaint schedule property. As such, the questions of law formulated in this case are answered against the appellant. In the result this Second Appeal is dismissed.