Jayasree v. Mohanan V. and Others, RSA No. 841 of 2018

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945 RSA NO. 841 OF 2018 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 15.3.2018 IN AS.NO.9/2014 OF DISTRICT COURT, ALAPPUZHA ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.10.2013 IN OS.NO.107/2011 OF SUB COURT, ALAPPUZHA ``` ## **`APPELLANT/APPELLANT/5TH DEFENDANT:`** ``` JAYASREE AGED 61 YEARS W/O PRESANNAN, T.C.4/669, SREEVILAS LANE, KOWDIAR P.O., THIRUVANANTHAPURAM NOW RESIDING AT KANDATHIL HOUSE, KALAPPURA WARD, ALAPPUZHA. BY ADVS. S. VINOD BHAT LEGITH T.KOTTAKKAL ANAGHA LAKSHMY RAMAN ``` ## **`RESPONDENTS/RESPONDENTS 1,3,5&6/PLAINTIFF AND DEFENDANTS 2,4 AND 6:`** ``` 1MOHANAN V. AGED 63 YEARS S/O LATE P.M. VASUDEVAN, KANDATHIL HOUSE, KALAPPURA WARD, ALAPPUZHA - 688 001 NOW RESIDING AT ASWATHY (PARAPPEL), PALLIPURAM P.O., CHERTHALA, PIN 688 541. 2SANTHOSHKUMAR, AGED 52 YEARS, SON OF LATE P.M.VASUDEVAN KANDATHIL HOUSE, KALAPPURA WARD, ALAPPUZHA – 688 001 3JEEJA, AGED 65 YEARS WIFE OF T.V. APPUKUTTAN, THAYIL HOUSE, KALAVOOR P.O., ALAPPUZHA, PIN 688 522 4SINDHU AGED 49 YEARS WIFE OF BABU RAJENDRA PRASAD, NOW RESIDING AT THUNDATHIL, PADA NORTH, KARUNAGAPPALLY P.O., KOLLAM, PIN - 690 518 R1 BY ADVS. O.V.MANIPRASAD SADCHITH P KURUP ``` ## **`RSA NO. 841 OF 2018 2`** ``` SREEKALA.S. JOSE ANTONY SHIV SHANKAR.S ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 841 OF 2018 3 ``` ## **JUDGMENT** Dated this the 6[th] day of November, 2023 This second appeal has been filed under Section 100 and Order XLII Rules 1 and 2 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), challenging decree and judgment in A.S.No.9/2014 on the files of the Principal District Court, Alappuzha, dated 15.3.2018, arising out of decree and judgment in O.S.No.107/2011 on the files of the Sub Court, Alappuzha, dated 31.10.2013. This appeal is at the instance of the 5[th] defendant in the original suit, who is the appellant in A.S.No.9/2014. 2. Respondents are the sole plaintiff as well as other defendants. 3. Heard the learned counsel for the appellant/5[th] defendant and the learned counsel appearing for the 1[st] respondent/plaintiff. 4. I shall refer the parties in this appeal as ‘plaintiff’ and ‘5[th] defendant’ for convenience. ``` RSA NO. 841 OF 2018 4 ``` 5. Plaint averments in brief as under: The case put up by the plaintiff before the trial court is that, one Vasudevan was the owner in possession of 1.05 Acres of Garden land and a building, having six shop rooms, comprised in Sy.No.596/4C, 596/4D and 596/5C of Alappuzha West Village. Out of the said extent of land, Vasudevan executed Settlement deed Nos.3301/1988, dated 23.11.1988 and 3679/1992, dated 21.10.1992 of SRO, Alappuzha, and transferred 30 cents in favour of the 4[th] defendant. Similarly, 30 cents of property also was transferred in favour of the 5[th] defendant, as per Settlement deed Nos.5159/1996, dated 5.11.1996, 864/2002, dated 25.3.2002 and 1445/2002, dated 6.5.2002. The further contention raised by the plaintiff is that, Vasudevan also gifted 20 cents of property in favour of the 6[th] defendant, as per Settlement deed Nos.865/2002, dated 25.3.2002 and 1444/2002, dated 6.5.2002, respectively. The remaining extent of property left by Vasudevan, having an extent of 22 cents, is the plaint A schedule item, out of 1.05 Acres. Plaint B, C and D schedule items are properties, having an extent of 36.250 cents, 16.500 cents and 33 cents, left by ## **`RSA NO. 841 OF 2018 5`** Vasudevan. Plaintiff sought partition of the plaint schedule items and to allot ¼ share in favour of the plaintiff and in favour of defendants 1 to 3. The contention raised by the plaintiff before the trial court was that, defendants 4 to 6 were given due shares in the property of Vasudevan and therefore, they are not entitled to get shares in the plaint A to D schedule properties. 6. Defendants 3 to 6 were set ex parte. 7. Defendants 1 and 2 filed written statement, mainly contending that claim of the plaintiff to the effect that properties were liable to be partitioned into 4 shares and the plaintiff would get ¼ share in exclusion of defendants 4 to 6, would not sustain and the entire properties were liable to be partitioned among the plaintiff as well as defendants 1 to 6 by allotting 1/7[th ] share each. 8. The trial court raised necessary issues and ventured the matter. PW1 was examined and Exts.A1 to A10 were marked on the side of the plaintiff. No evidence let in by the defendants either oral or documentary. On appreciation of evidence, the trial court passed preliminary decree, holding ``` RSA NO. 841 OF 2018 6 ``` that defendants 4 to 6 were not entitled to get partition of plaint A to D schedule properties and accordingly, preliminary decree of partition was granted as under: - _“In the result, suit is decreed and Preliminary Decree passed in the following lines:_ - _a) Plaint A to D schedule properties are liable to be partitioned among the plaintiff and defendants 1 to 3._ - _b) In the event of partition, plaintiff and defendants 1 to 3 are entitled to get ¼ share each in plaint A to D schedule properties._ - _c) Equities and reservation if any will be considered at the stage of final decree._ - _d) The plaintiff is allowed to file Final Decree Application for the division of the property._ - _e) The costs of the suit will come out of the estate._ - _f) The suit adjourned sine die.”_ 9. Defendants 1, 2, 4 and 6 filed A.S.No.2/2014 and the 5[th] defendant filed A.S.No.9/2014, before the District Court, Alappuzha, challenging the decree and judgment of the trial court. The appellate court passed common verdict in A.S.No.2/2014 and A.S.No.9/2014 and concurred the finding of the trial court regarding the finding to the effect that the ## **`RSA NO. 841 OF 2018 7`** properties are partible by ¼ share, as contended by the plaintiff in exclusion of defendants 4 to 6, while modifying the shares in view of the death of the defendants 1 and 3, during pendency of the appeal. Accordingly, modified preliminary decree for partition was passed as under: - _“In the result, the appeals, A.S.Nos.2/14 and 9/14 are disposed as below:-_ _1. The finding of the Sub Judge, Alappuzha in O.S.No.107/2011 that as on the date of suit and as on the date of decree, the plaint A to D schedule properties can be partitioned only among the plaintiff and defendants 1 to 3, that is in 4 shares is accepted._ _2. I modify the preliminary decree passed, because of the changed circumstance due to the death of defendants 1 and 3 as follows:_ - _a. Now the plaint A to D schedule properties shall be divided into 120 equal shares, wherein the plaintiff and second defendant are entitled to get 42 shares each and the defendants 4 to 6 are entitled to get 12 shares each._ - _b. The share of the plaintiff shall be allotted to him separately._ ``` RSA NO. 841 OF 2018 8 ``` - _c. The shares of the defendants 2 and 4 to 6 shall be allotted to them only on payment of requisite court fee._ - _d. The claim of equities and reservation will be considered at the stage of final decree._ _3. Any of the parties, who have paid court fee can apply for passing the final decree._ _4. The cost of the suit shall come out of the estate. 5. The suit shall remain adjourned sine die.”_ 10. The learned counsel for the 5[th] defendant, while impeaching the veracity of concurrent verdicts in the matter of denial of shares to defendants 4 to 6, argued that the appellate court mainly relied on Exts.A4, A5 and A6 documents in favour of the 5[th] defendant to hold that, as per the recitals in the said documents, the 5[th] defendant could not claim partition of the remaining properties left by Vasudevan and it is also submitted that the trial court also read out Exts.A2, A3, A7 and A8 documents in favour of defendants 4 and 6, to hold so. The learned counsel argued a subtle difference in between the recitals in Exts.A2 – Certified copy of Settlement deed ``` RSA NO. 841 OF 2018 9 ``` No.3301, A3 – Certified copy of Settlement deed No.3679/1992, A7 - Certified copy of Settlement deed No.865/2002 and A8 - Certified copy of Settlement deed No.1444/2002 with that of Exts.A4, A5 and A6 in favour of the 5[th] defendant. According to the learned counsel, there is no clause in Exts.A4 and A6 to the effect that, the properties covered by Exts.A4 and A6 imposed restriction on succession, in any manner. However, in Ext.A5, there is a clause to the effect that the property covered by Ext.A5 was given in favour of the 5[th] defendant by adjusting her due share in the properties of Vasudevan. According to the learned counsel, merely because there is a reference in the title deed to the effect that the property was given by adjusting the same towards the due share of a person from the property left by the executant by itself, is not a ground to deny the said right, since succession would open only after the death of the person. He also pointed out that, in the decision in **Elumalai @ Venkatesan** v. **M.Kamala** , reported in **[2023 KHC 6078]** , the Apex Court considered the impact of Section 6 of the Transfer of Property Act, 1882 and held as under: ``` RSA NO. 841 OF 2018 10 ``` _“S.6 of the Transfer of Property Act enumerates property which can be transferred. It declares that property of any kind may be transferred except as otherwise provided by the Transfer of Property Act or by any other law for the time being in force. S.6(a) declares that a chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or other mere possibility of a like nature cannot be transferred. A living man has no heir. Equally, a person who may become the heir and entitled to succeed under the law upon the death of his relative would not have any right until succession to the estate is opened up. When Shri Sengalani Chettair, the father of Shri Chandran, was alive, Shri Chandran his son had at best a spes successonis. Unlike a co-parcener who acquires right to joint family property by his mere birth, in regard to the separate property of the Hindu, no such right exists. Thus, there can be no doubt that the Release Deed may not by itself have the effect of a transfer of the rights of Shri Chandran in favour of either his father or the minor son of his father from the second marriage.”_ The learned counsel also pointed out the earlier decision of this Court in **Pathuma Kunju and Ors.** v. **Assya and Ors.** , ## **`RSA NO. 841 OF 2018 11`** reported in **[ILR 1978 (2) Kerala 529]** , where this Court considered a document wherein also there is recital to the effect that the property covered in Ext.A1 in the said case was given by adjusting the share due from the executant and with a further clause that the recipient could not claim any right in respect of the remaining property of the executant. On perusal of the said decision, it could be gathered that, this Court considered the principles of estoppel and the principles of ‘approbate’ and ‘reprobate’ with reference to English and Scottish case law and finally held as under: _“If the 2[nd] Plaintiff accepts this gift certainly she cannot claim any right in the estate after the death of her father. No doubt, if she is willing to give up the gift subject to her rights to the value of improvements, if any she has made in the said property from the time she was in possession of the same, she could claim share in her deceased father's estate. Therefore, I would modify the judgment and decree of the court below by holding that as far as the 2[nd] Plaintiff is concerned she would be entitled to claim share in the property only if she gives up the gift. She will have to make an election as to whether she would take the gift or claim a share in her father's estate. If she claims the share she will have_ ``` RSA NO. 841 OF 2018 12 ``` _to give up the gift, no doubt subject to her rights to the value of improvements, if any she has made in the property. However, nothing will impede in any way her succession to the 1/16th share of the estate which the 1[st] Plaintiff had got. The time for the 2nd Plaintiff to make the election in the manner indicated above will be at the final decree proceedings. If she gives up the property gifted and prefers to get the share in the estate, the same will have to be brought into hotchpotch for partition amongst the various sharers.”_ In the alternative, it is argued by the learned counsel for the 5[th] defendant that, in view of the above decision, if the 5[th] defendant gives up the property given as per Ext.A5, wherein a clause showing that the property was given by adjusting the due share of Vasudevan in favour of the 5[th] defendant, the 5[th] defendant is entitled to get partition of the entire properties including the property covered by Ext.A5 and thereby, 1/7[th] share each is entitled to all the parties to the suit. 11. In fact, the appellant herein remained ex parte before the trial court and she did not file written statement, raising any contentions now mooted. However, the appellant ## **`RSA NO. 841 OF 2018 13`** herein/5[th] defendant filed appeal, challenging the decree and judgment passed by the trial court. It is true that, the contesting defendants 1 and 2 also filed appeal and they filed written statement contending that the properties were partible into 7 shares and all the parties were entitled to get 1/7[th] share each. In the written statement filed by defendants 1 and 2 also, the alternative suggestion made by the learned counsel for the 5[th] defendant, not raised. 12. Coming to the legal position insofar as the recital in Ext.A5 is concerned, it is necessary to extract the same, as such. In Ext.A5, Vasudevan categorically recited that, _"_ എന്റെ കാലശേ ഷം എന്റെ വകയായി കാണാവുന്ന സ്വത്തുക്കളുടെ ഓഹരി പിന്തുടർച്ചാവകാശവഴി നിനക _"_ കിട്ടാവുന്നഓഹരിയായികണക്കാക്കിയും 13. A plain reading of the above recital would go to show that Vasudevan intended to limit the share entitled by the 5[th] defendant to the property covered by Ext.A5 and never intended to give any share apart from one covered by Ext.A5 at the time of execution of Ext.A5. It is true that, after the execution of Ext.A5, as per Ext.A6 also, some property in ``` RSA NO. 841 OF 2018 14 ``` addition to properties covered by Exts.A4 and A5, given in favour of the 5[th] defendant by Vasudevan. 14. The learned counsel for the plaintiff submitted that, in view of the recital in Ext.A5, as extracted hereinabove, the 5[th] defendant could not claim any right in the plaint A to D schedule properties, since due share to the 5[th] defendant was given as per Exts.A4 and A5. That apart, more property also was given subsequently, as per Ext.A6. The learned counsel has placed decision of this Court in **Damodaran Kavirajan and others** v. **T.D.Rajappan** reported in **[AIR 1992 Ker 397]** , wherein this Court considered two documents marked as Exts.D1 and D2 therein. In the said case, a gift deed was executed in favour of the plaintiff with condition that the beneficiary could not get any property other than one covered by Ext.D2 and at the same time, Ext,D1 was executed by the executant and released the remaining property in favour of the mother. In the said case, this Court in Paragraph No.12, held as under: ``` RSA NO. 841 OF 2018 15 ``` _“_ _**12** . From the aforesaid decision it is clear that in such circumstances the principle of estoppel mentioned in S.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).”_ ``` RSA NO. 841 OF 2018 16 ``` 15. Another decision of this Court in **Sarojini Amma** v. **Johnson** reported in **[2000(1) KLT 603]** also has been placed by both sides. In the said decision, this Court dealt with a document, where also similar clauses were incorporated and held that, when the condition in the document was accepted by the beneficiary, he is estopped under Section 115 of the Indian Evidence Act, 1872, from claiming further right in the remaining property. Another decision placed is one in **Nabeeza C.H.** v. **K.H.Abdul Kareem and Others** , reported in **[2016 (1) KHC 303]** wherein also this Court dealt with a gift deed executed in favour of the plaintiff. 16. In view of the rival arguments, the following substantial questions of law formulated and this second appeal is admitted. _1. Whether acceptance of a settlement deed or gift deed or any deed of conveyance by the beneficiary wherein condition/conditions imposed, stating that the property covered by the deed, being given adjusting the property towards share due from the executant, the same would operate as_ ``` RSA NO. 841 OF 2018 17 ``` _an absolute bar claiming share in the remaining property, left by the executant, by way of succession?_ _2. What are the conditions necessary to apply the rules of estoppel in such cases?_ 17. On hearing both sides in detail, first of all, it is held that the decision in **Elumalai** ’s case (supra), has no application in the present case. True, as I have already pointed out, the learned counsel for the 5[th] defendant pointed out a difference in between the reported cases (referred hereinabove) dealt by this Court, and the present case, on the specific mention that, even though in the cases dealt by this Court, there are two clauses in the documents, in the present case, in Ext.A5, there is one clause stating that the property was given by adjusting the property to be inherited by Vasudevan. But the second clause stating that the beneficiary could not claim any further shares in the property, if any, left by the executant, is not stated in Ext.A5. Therefore, the rule of estoppel has no application. It is relevant to note that, even ## **`RSA NO. 841 OF 2018 18`** though the learned counsel for the 5[th] defendant raised an alternative plea to surrender the property covered by Ext.A5, in view of the ratio of the decision in **Pathuma Kunju and Ors.** (supra), no such contention specifically raised before the trial court or before the first appellate court. In fact, the 5[th] defendant was set ex parte by the trial court. Therefore, the alternative plea cannot be considered, that too, at the second appellate stage to defeat the claim of partition, at the instance of the plaintiff, at a much belated stage. 18. Now, the question is, how far the claim of the 5[th] defendant to get 1/7[th] share in the plaint schedule properties, could succeed, in view of the recitals in Ext.A5. 19. When a person owns properties, while executing a document, for transferring a portion of the same in favour of one of the heirs with a clause stating that, the property covered by the document was given towards the due share entitled to succeed, the same impliedly indicates that, apart from the property covered by the said deed of conveyance, no property would be given to the beneficiary of the document. Once the beneficiary of the document accepts the said ``` RSA NO. 841 OF 2018 19 ``` document, he also accepts the said condition. On acceptance of the said document by the beneficiary, the beneficiary deemed to have satisfied the share given to him. If so, the beneficiary is absolutely estopped from claiming right in the property left by the same executant. In such case, other sharers who were not given property, would succeed. 20. Coming to the second substantial question, the principle of estoppel is explained in Section 115 of the Indian Evidence Act, 1872. Section 115 is extracted hereunder: _**115. Estoppel.-** 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._ The basic principle of estoppel is that, when a person, for example, ‘A’ has caused another person, for example, ‘B’, to act on the basis of a particular state of affairs, A is prevented from going back on the words or conduct, which led B to act on that basis, if certain conditions are satisfied. In such cases, A is ``` RSA NO. 841 OF 2018 20 ``` estopped (i.e. stopped) from resciling from or denying the existence of that particular state of affairs. When a person taking benefit out of an instrument, which contains certain benefits in favour of him and also some restrictions or disadvantages to him, by the same instrument, he has to accept both covenants. After having accepted the benefits and restrictions and disadvantages, he cannot say, at a later stage that he accepted part of the document, which is beneficial to him and not accepted part of the document, which is not beneficial to him. This is what is meant by the principle of ‘approbate’ and ‘reprobate’. 21. Faced with the situation, the learned counsel for the 5[th] defendant raised an alternative plea, in view of the decision in **Pathuma Kunju and Ors.** (supra) to give up the benefit she got, as per Ext.A5 and make available the said property along with the plaint schedule items for partition and thereby, allotting 1/7[th] share each to both parties, which this Court is not inclined to consider. In view of the matter, it is held that the trial court as well as the appellate court rightly appreciated the evidence and ``` RSA NO. 841 OF 2018 21 ``` rightly denied shares to defendants 4 to 6, in the plaint schedule items, since they had obtained properties during the life time of the executant. The said finding is perfectly justifiable. In the result, this appeal is found to be meritless and the same is dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb