Sheen A. Victor v Usha A. Victor and others (RSA No. 232 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** ## **RSA NO. 232 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OS 1216/1999 OF PRINCIPAL MUNSIFF** ## **COURT ,NEYYATTINKARA** ## **AS 267/2003 OF SUB COURT,NEYYATTINKARA** ## **APPELLANT/APPELLANT/2ND DEFENDANT:** **SHEEN.A.VICTOR, AGED 38 YEARS,** **S/O.LATE SHRI.A.VICTOR, KAMALA BHAVAN, MARAYAMUTTOM P.O., NEYYATTINKARA.** **BY ADV SRI.K.P.SREEKUMAR** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 8:** - **1 USHA A.VICTOR, D/O.KAMALOJINI HOUSE NO.IV A, OBSERVATORY STREET, R.V.PURAM, NAGERKOVIL.** - **2 SHEELA A VICTOR, D/O.KAMALOJINI HOUSE NO.175 A, HENRY STREET, K.P.ROAD, NAGERKOVIL.** - **3 SHEEJA A VICTOR (DIED)LRS IMPLEADED) RESIDING AT SUSHEELA ILLOM, UNNIYOORKONAM, KULASEKHARAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU.** - **(3RD RESPONDENT IS RECORDED AS DIED AS PER ORDER DATED 01.07.2022 IN MEMO DATED 21.06.2022 IN RSA.232/2009.)** - **4 RUSSAL RAJ, AGED ABOUT 36 YEARS S/O.RASSALAM, MANEESHA BHAVAN, IDAKKODE DESOM, PALLICHAL P.O.** - **5 VILASINI MINI, AGED ABOUT 33 YEARS MANEESHA BHAVAN, DO. DO. DO. DO.** - **6 JOHNY, AGED ABOUT 43 YEARS S/O.SREEDHARAN, KALLIDANTHI MELETHATTU, E.S.BHAVAN, VADAKARA DESOM, PERUMKADAVILA, VILLAGE, MARAYAMUTTOM P.O., PIN - 695 131.** - **7 G.K.SREEKALA, D/O.KARTHI, AGED ABOUT 41 YEARS, DO. DO. DO. DO.** - **ADDL. R8 JOHN BOSCO.G AGED 52 YEARS S/O G.GANESH,DOOR NO.7/527,7TH BLOCK,MUGAPPAIR,WEST STREET,CHENNAI,AMBATTUR TALUK,TIRUVALLUR DISTRICT,TAMILNADU, NOW RESIDING AT NO.91,4TH CROSS STREET,1ST FLOOR,SENTHIL NAGAR,KOLATHOOR,CHENNAI-99** R.S.A.No.232 of 2009 2 **ADDL.R9 JOHN SURYA.J S/O. JOHN BOSCO G,DOOR NO.7/527,7TH BLOCK,MUGAPPAIR,WEST STREET,CHENNAI,AMBATTUR TALUK,TIRUVALLUR DISTRICT,TAMILNADU, NOW RESIDING AT NO.91,4TH CROSS STREET,1ST FLOOR,SENTHIL NAGAR,KOLATHOOR,CHENNAI-99 (LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 8 AND 9 AS PER ORDER DATED 02/08/2022 IN IA 1/2022 IN RSA 232/2009) BY ADVS. K.B.PRADEEP R.S.KALKURA K.AMMINIKUTTY L.MOHANAN N.RAGHURAJ HARISANKAR R JEEVAN KRISHNAKUMAR** ## **OTHER PRESENT:** **SRI. K.B PRADEEP - R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 8.3.2023,** **THE COURT ON 24.3.2023 DELIVERED THE FOLLOWING:** R.S.A.No.232 of 2009 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.232 of 2009 --------------------------------------------Dated this the 24[th] day of March, 2023 ## **J U D G M E N T** Regular Second Appeal has been filed by the second defendant in O.S.No.1216/1999 on the file of Principal Munsiff's Court, Neyyattinkara. The suit is one for declaration, partition and for permanent prohibitory injunction. 2. (Parties would hereafter be referred as per their status before the trial court). Plaintiff and defendants 2 to 4 are the children of first defendant and deceased Kamalojini. Plaint schedule properties are alleged to be that of deceased Kamalojini and on her death devolved upon the plaintiff and the defendants equally. Plaintiff, after marriage, is residing at Nagarcoil in her matrimonial home and defendants 3 and 4 are also residing in their marital homes. After the death of Kamalojini, plaintiff and the defendants agreed to partition the plaint schedule property R.S.A.No.232 of 2009 4 allotting 1/5 share to each of them and is in enjoyment of the property accordingly. Plaintiff demanded partition of the properties by metes and bounds and defendants 1 and 2 are not amenable to the same. Hence, notice was sent for which reply was sent raising untenable contentions. A partition deed is also executed on 03.01.1998 in which the plaintiff is not a party. Partition deed happened to be executed by the 1[st] defendant under the influence of defendants 2 and 4. Defendants are trying to cut and remove valuable trees from the plaint schedule property on the strength of the partition deed. Hence the suit. 3. 2[nd] defendant filed written statement contending that the suit has been filed without any bona fides. Item No.6 of the plaint schedule property alone belongs to Kamalojini. During the lifetime of Kamalojini, plaintiff was given her due share as per settlement deed No.1725/1983. Hence the plaintiff is estopped from claiming partition. At the time of marriage, she was given gold ornaments and huge amount was also spent for marriage. Third defendant was also given due share at the time of marriage. During 1997, when plaintiff and other children came R.S.A.No.232 of 2009 5 to the family house, 1[st] defendant suggested for partition of his properties and that of the property left by Kamalojini and a partition deed was agreed to be executed. Though the plaintiff and third defendant agreed to sign the partition deed, they left the place without subscribing their signature. Thus defendant is in possession of the property allotted to him as per the partition deed. The property obtained by 4[th] defendant was already sold to strangers and they are not impleaded in the suit and hence the suit is bad for non-joinder of necessary parties. 4[th] defendant filed written statement contending that in case partition of the property is ordered, the property set apart to her as per the partition deed is to be allotted to her share and additional defendants 5, 6, 7 and 8 filed written statement seeking allotment of properties purchased by them as per a share of the 4[th] defendant. 4. PW1 was examined and Exts.A1 to A4 were marked from the side of the plaintiff. DW1 and DW2 examined and Exts.B1 to B5 were marked from the side of the defendants. R.S.A.No.232 of 2009 6 5. Trial Court, on evaluating the facts, circumstances and evidence, found that Ext.A3 partition deed is not binding on the plaintiff and ordered partition of the plaint schedule property into four equal shares and allotted one such share to the plaintiff. Permanent injunction is also granted restraining the 2[nd] defendant from committing any waste in the schedule property. Against which 2[nd] defendant filed appeal before the Subordinate Judge's Court, Neyyattinkara and the learned Sub Judge on reappreciating the facts, circumstances and evidence, concurred with the judgment and decree passed by the trial court and dismissed the appeal. 6. Aggrieved by the same, 2[nd] defendant approached this Court in second appeal. ## 7. R.S.A was admitted on the substantial question of law formulated in the memorandum of appeal which reads thus: _“(a) Are the courts below right in law in decreeing ¼ share to the plaintiff in the plaint schedule property, in a case where their law of succession namely the Indian Succession Act allows only 1/4th of the 2/3rd share in the properties of_ R.S.A.No.232 of 2009 7 _the deceased mother to the lineal descendants and 1/3rd share will devolve on the 1st defendant husband of deceased Kamalojini who died intestate?_ _(b) Since the plaintiff has accepted and acted upon Ext.B1 gift deed, can she be permitted to claim share in the plaint schedule properties without renouncing the benefits under Ext.B1 ?_ _(c) Can a suit for partition be maintained without establishing Kamalojini's title to the plaint schedule property especially when the courts below have observed that no documents to evidence title of Kamalojini have been produced by the plaintiff?_ _(d) When the plaintiff seeks a decree declaring that Ext.A3 is not binding on her, can she be permitted to rely on a recital to treat it as an admission in her favour in respect of Kamalojini's title to the plaint schedule property?"_ 8. Lower court records were called for and both sides were heard. According to the learned counsel for the second defendant/appellant, the suit filed without a prayer for cancellation of Ext.B1 settlement deed itself is not maintainable since it created a cloud on the title of the plaintiff over the scheduled properties. It is also his contention that Ext.B2 document executed by the plaintiff would prove that Ext.B1 R.S.A.No.232 of 2009 8 settlement deed has been acted upon wherein there is a specific stipulation that the property covered by it is given to her as her share in the family properties and hence the decree passed by the courts below ordering partition of the schedule properties is illegal and unsustainable. 9. Learned counsel relies on **Sarojini Amma v. Johnson : 2000 (1) KLJ 728** to substantiate his contention and would contend that both courts below misinterpreted the dictum laid down in **Sarojini** 's case and ordered partition of the properties. 10. Learned counsel for the plaintiff, on the other hand, would contend that Ext.B1 gift deed will not in any way estop the plaintiff from sharing the plaint schedule property because there is no stipulation in Ext.B1 settlement deed viz. gift deed estopping her from claiming her share out of remaining properties of the mother. Plaintiff has a case that the entire plaint schedule property belongs to the mother and the trial court also approved that contention in view of the recitals in Ext.A3. No other documents are also produced to trace the title of the plaint schedule properties. However, in view of the recitals in Ext.A3 R.S.A.No.232 of 2009 9 partition deed which is an admitted document by the 2[nd] defendant, the trial court concluded that the plaint schedule properties belong to the mother. That has been upheld by the first appellate court. I do not find any justifiable reasons to deviate from the said concurrent findings of the court below. 11. It is contended by the 2[nd] defendant that since a declaration is sought for to the effect that Ext.A3 is not binding on the plaintiff, she cannot rely on the recitals in Ext.A3 to contend that the plaint schedule properties belongs to Kamalojini. But, Ext.A3 is a document admitted by the second defendant. He also claims his right and title based on Ext.A3 and it is a registered deed executed between himself and other siblings except plaintiff and third defendant. He cannot turn round and dispute the recitals in Ext.A3. So also, since the suit is one for partition and the parties are siblings (except the 1[st] defendant father, who is no more), nothing prevents the 2[nd] defendant from producing documents to prove that the plaint schedule property exclusively belongs to the father. No such attempt also has been made by him though there is description with regard to series of R.S.A.No.232 of 2009 10 documents with respect to devolution of right over the properties in Ext.A3. So, the courts below cannot be found fault with for placing reliance on the recitals in Ext.A3. 12. It is also contended that in **Sarojini** 's case, there was a specific stipulation in the gift deed that the donee will not be entitled to get any share from the remaining properties of the donor. So, the principles laid down in **Sarojini** 's case cannot be squarely made applicable to the case in hand as rightly found by the courts below. 13. From the above rival contentions, main question for determination is whether Ext.B1 gift deed will estop the plaintiff from claiming partition of the plaint schedule properties? 14. Both courts below ordered partition disregarding Ext.B1 for the reason that there is no express stipulation in Ext.B1 prohibiting the plaintiff from claiming shares out of remaining properties of the parents. In order to determine the actual issue it would be necessary to understand the terms in Ext.B1 settlement deed. Learned counsel for the plaintiff has also got a contention that though Ext.B1 settlement deed was R.S.A.No.232 of 2009 11 executed in her favour with respect to 43½ cents of property, 25½ cents out of which has been sold by her to one of her sisters as requested by the father. It is also his contention that there was no relinquishment of the right of the plaintiff over the remaining properties of the parents as per the stipulations in Ext.B1 and hence Ext.B1 document will not in any way curtail the right of the plaintiff to claim share over the remaining properties of the mother. 15. Specific recital in Ext.B1 that since the marriage of the plaintiff has been decided to be conducted on a near date, from the properties of the executants, the share of the plaintiff has to be given and hence 43½ cents of property and building with mud wall and with kadjan leaf roof is given to the plaintiff as settlement”. Exact words has been extracted in the judgment passed by the trial court which reads thus: " ഞങള�ട� സ�ത�മ�തൽ വകകള�ൽ ന�ന�� ��യ�ൾക� ലഭ�കകണത�യ ഓഹര� മ�തൽ വ ത�ച� ടക���കകണത�വശ#മ�കയ�ല�� ഞങള�ട� വക ന�ല%ത�മ&ന� ടസന�'� വസ)�വ�� മൺകടടകട� പ&ശ�യ R.S.A.No.232 of 2009 12 ച�വര�� ഓലകമച�ല�മ�യ� ഇര�പ�ള ടകട��വ�� ��യ�ൾക� ". ഞങൾ ധനന�ശയമ�യ� ടക���ത�ര�ക�ന� 16. So, contention of the learned counsel for the second defendant is that since stipulation in Ext.B1 would make it explicit that the settlement deed has been executed before the marriage of the plaintiff as her share in the properties of the parents, she will not be entitled to claim any further share. Though the argument so advanced by the learned counsel for the appellant/second defendant appear to be acceptable on a first blush, on going deep into the law in the field, the contention so advanced is not seem to be acceptable. 17. First of all, the decision quoted by the learned counsel for the appellant in **Sarojini Amma** itself can be analysed. That was a case in which the gift deed was executed in favour of two sons by the mother with a stipulation that plaintiff and her brother will not have any share in the property of the mother (donor) left as balance after such gift. The property gifted to the plaintiff and brother is scheduled as B and the remaining property is scheduled as A in that case and the question arose R.S.A.No.232 of 2009 13 whether the plaintiff is further entitled to claim share over the plaint A schedule property. In the gift deed executed by the mother in that case, there was a stipulation that B schedule property has been given to the plaintiff and her brother as their share in her properties for their absolute enjoyment. It is further stipulated that, after the death of mother, they will not have any right over the properties of the mother and they cannot claim any such right also. In the said circumstances, it was found that it was not a mere desire of the donor and it has an effect of agreement and consent that the donees cannot ask for any share in the property and consenting to that condition that they had accepted the gift and thereafter they cannot turn round and claim share over the balance properties of the mother. 18. **Damodaran Kavirajan and others v. T.D.Rajappan : AIR 1992 Kerala 397** referred in the above judgment is also relevant in this context. In that case, a gift deed was executed in favour of a heir on condition that the heir will not claim his share in other properties. That gift is accepted and acted upon and is taken as a family arrangement and hence R.S.A.No.232 of 2009 14 it was held that, that heir is estopped from claiming share in the property. In that case, a contention was raised by the donee that what was released was only a spes successionsis which is not transferrable under Section 6 of the Transfer of Properties Act and hence those condition is not legally enforcible. Learned Single Judge considered the scope and ambit of Section 6(a) of the Transfer of Properties Act and the rule of Section 115 of the Evidence Act which estops a party from their conduct if the relinquishment was made by one of the parties of his right to inherit in future for a consideration. On interpreting the gift deed executed by the mother in that case, it was concluded that mother absolutely settled her properties in favour of the son only for the consideration that the son relinquish his right for future share in the properties left by her. The fact that the son gave up his right of inheritance for a consideration, namely the immediate obtaining of certain properties towards his share will estop him from claiming any share over the rest of mother's properties. What is to be understood is that Section 6(a) of The Transfer of Property Act bars the transfer of the chance of an heir apparent R.S.A.No.232 of 2009 15 succeeding to an estate, the chance of a relation obtaining a legacy on the death of kinsman or any other mere possibility of a like nature. Section 115 of the Indian Evidence Act deals with rule of estoppel which provides that 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. In **The Jumma Masjid, Mercara vs Kodimaniandra Deviah : AIR 1962 SC** **847 : 1962 (1) KHC 353** , the Apex Court had occasion to interpret Section 43 and Section 6(a) of the Transfer of Property Act, 1882. Paragraphs 8 and 9 of the said decision is relevant in this context to be extracted which reads thus: _“The contention on behalf of the appellant is that S.43 must be read subject to S.6(a) of the Transfer of Property Act which enacts 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 argument is_ R.S.A.No.232 of 2009 16 _that if S.43 is to be interpreted as having application to Cases of what are in fact transfers of spes successionis, that will have the effect of nullifying S.6(a), and that therefore it would be proper to construe s. 43 as limited to cases of transfers other than those falling within S.6(a). In effect, this argument involves importing into the section a new exception to the following effect; "Nothing in this section shall operate to confer on the transferee any title, if the transferor had at the date of the transfer an interest of the kind mentioned in S.6(a). If we accede to this contention we will not be construing S.43 but rewriting it. "We are not entitled", observed Lord Loreburn L. C., in Vickers v. Evans (1), "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself."_ _Now the compelling reason urged by the appellant for reading a further exception in S.43 is that if it is construed as applicable to transfers by persons who have only spes successionis at the date of transfer, it would have the effect of nullifying S.6(a). But Section 6(a) and S.43 relate to two different, subjects, and there is no necessary conflict between them; Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests._ R.S.A.No.232 of 2009 17 _Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while S.43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for outing down the ambit of the one by reference to the other. In our opinion, both of them can he 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."_ 19. Ultimately, the Apex Court concluded that when a person transfers property representing that he is a person interested therein whereas he is in fact only a spes successionsis, the transferee is entitled to the benefit of Section 43 if he has taken the transfer on the faith of that representation and for consideration. That is the way in which a harmonious construction of Section 6(a) and Section 43 of the Transfer of R.S.A.No.232 of 2009 18 Property Act read with Section 115 of the Evidence Act has been resorted to by the Apex Court. 20. In the case on hand, Ext.B1 settlement deed was executed by the parents in favour of the plaintiff in connection with her marriage, of course, as her share in their properties. So, it is a unilateral act on the part of the settlers, that is, the parents by giving share of the plaintiff at the time of her marriage out of properties held by them. There is nothing to infer from the stipulation in Ext.B1 that the plaintiff has made any relinquishment or declaration that she will not claim any share out of balance properties of the parents. The donors also did not make it clear in Ext.B1 that the plaintiff is not entitled to claim any share out of the remaining properties of the settlers. In other words, there is nothing to infer that there was any agreement or consent from the part of the plaintiff to relinquish her claim over the remaining properties of the parents while accepting the property covered by Ext.B1. To put it in other words, since there is no express stipulation in Ext.B1 to infer that plaintiff relinquished her right over the remaining properties of the R.S.A.No.232 of 2009 19 executants, she is not estopped from claiming her share over the remaining properties of the executants in spite of acceptance of Ext.B1, the stipulations in which only amount to a desire of the donors that the property is given to the plaintiff at the time of her marriage towards her share over the family properties without any agreement or consent by her that she will not claim any share out of the remaining properties of the parents. 21. The defendants can foreclose the right of the plaintiff over the plaint schedule properties only on the basis of rule of estoppel. Since there is no intentional act or omission or declaration on the part of the plaintiff relinquishing her right over the remaining properties of the parents while accepting Ext.B1 settlement deed, the Rule of Estoppel cannot be made applicable to the plaintiff in preventing her from claiming the share over the remaining properties of the parents. 22. Learned counsel for the 2[nd] defendant would also contend that inspite of the acceptance of Ext.B1 by the plaintiff without giving due credit of her share as per Ext.B1 again partition was ordered and plaintiff was given ¼ share out of the R.S.A.No.232 of 2009 20 total properties which according to the learned counsel is unjust and inequitable. He would also contend that Ext.B2 produced from the side of the second defendant would prove that a certain extent of property out of Ext.B1 has been sold by the plaintiff and that would show that Ext.B1 has been acted upon by the plaintiff. But, during her evidence, PW1 would depose that the document was prepared at the instance of the father and she just put her signature. Ext.B2 document would make it clear the very presence of the father at the time of execution of Ext.B2 and the property was sold to her unmarried sister. Anyway, the document is styled as a sale deed and Section 92 of the Evidence Act prevents her from contending otherwise. However, in view of the finding made above, execution of Ext.B1 legally will not inhibit the plaintiff from claiming her share from the remaining properties of the mother. Likewise, the contention of the defendant that suppression of execution of Ext.B1 in the plaint and the absence of prayer for declaration to set aside Ext.B1 would disentitle the plaintiff to claim partition are also not sustainable since execution of Ext.B1 in favour of plaintiff has R.S.A.No.232 of 2009 21 already been found to have no legal effect in claiming her share over the remaining properties of the mother. So, in view of the settled principles of law, I conclude that execution of Ext.B1 settlement deed by the parents will not in any way estop the plaintiff from claiming her share over the remaining properties of the mother. 23. Learned counsel for the appellant/2[nd] defendant also sought the aid of Section 65 of the Indian Contract Act, 1872 to support his contention that after obtaining 43½ cents of property as per Ext.B1, the plaintiff cannot further claim share out of the plaint schedule property. But, Section 65 does not have any application to the present case because Section 65 provides that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. Here, Ext.B1 gift deed executed by the parents has already been found to have no impact in claiming shares over the remaining properties of the mother. Nobody also has any case R.S.A.No.232 of 2009 22 that Ext.B1 is void. Specific case of the second defendant is also that Ext.B2 would prove that Ext.B1 has been acted upon and hence the plaintiff is estopped from claiming further share out of remaining properties. So, Section 65 of the Indian Contract Act has no relevance to the fact in issue in this case. 24. Section 34 of the Specific Relief Act, 1963 also has been sought in aid by the learned counsel for the appellant/2[nd] defendant to contend that declaration that Ext.A3 partition deed will not bind the plaintiff ought to have been refused being a discretionary relief. But, admittedly, plaintiff has not signed in Ext.A3 partition deed. Even according to DW2, the Scribe who prepared Ext.B1, the matters for preparation of Ext.B1 has been told by the first defendant/father on the preceding day. Though he further depose that the contents was read over to all the parties on the succeeding day and nobody raised objection, admittedly by him, two persons have not signed it. Leaving the place without subscribing signature in the partition deed itself would infer the absence of consent on the part of the plaintiff in executing the partition deed. So, the courts below rightly R.S.A.No.232 of 2009 23 declared that Ext.A3 partition deed will not bind the plaintiff and thereby ordered partition of the plaint schedule properties and allotted ¼ share to the plaintiff. In the result, R.S.A stands dismissed. In the facts and circumstances, parties shall bear their respective costs. Sd/- **M.R.ANITHA, JUDGE** jsr