IN THE HIGH COURT OF KERALA AT ERNAKULAM

Harun-Ul-Rashid, J.

A.S. No. 292 of 1999

Dated this the 29^th day of February, 2012

Head Note:-

Indian Evidence Act, 1872 – Section 115 - Transfer of Property Act, 1882 – Sections 6(a) and 43 - Spes successionis - Where a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of S.43, if he has taken the transfer on the faith of that representation and for consideration. 

Indian Evidence Act, 1872 – Section 115 - Transfer of Property Act, 1882 – Sections 6(a) and 43 - Spes successionis - If the expectant heir receives consideration and so conducts himself as to mislead an owner in to 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. 

Indian Evidence Act, 1872 – Section 115 - Transfer of Property Act, 1882 – Sections 6(a) and 43 - Spes successionis right can be alienated by family arrangement.

For Appellant:- 

• S. Jasmine

For Respondents:- 

• P.R. Venketesh
• N. Subramaniam
• M. S. Narayanan;

J U D G M E N T

1. Plaintiff is the appellant. The appeal is directed against the judgment and decree in O.S. No. 105/1986 on the file of the Additional Sub Court, Irinjalakuda. Suit was filed for setting aside Ext. A2 sale deed dated 09-12-1974, partition and separate possession of 1/6th share and for share of profits and costs. The Trial Court dismissed the suit with costs. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit.

2. Plaintiff is claiming share in the plaint schedule property as one of the legal heirs of Bavunni. Bavunni died on 31-03-1982. Defendants 1 to 4 are the other children of Bavunni and the 5th defendant is the wife of Bavunni. The 6th defendant is the brother of Bavunni.

3. The 6th defendant in the written statement contended that right of the plaintiff in the plaint schedule property was assigned to him and he purchased the same for value and in good faith. Ext. A2 is the sale deed executed by the plaintiff in favour of the 6th defendant. According to the; 6th defendant, the plaintiff is not entitled to any share on Bavunni's death since she released her share in favour of the 6th defendant. It is pleaded in the written statement that the plaintiff, while residing with her husband, wanted to sell her right in the property owned by her father, that she approached Bavunni and 6th defendant, who is the brother of Bavunni and expressed her willingness to release the right for value to be received. The value of her share was fixed after negotiation and out of the value fixed, one half of the amount was utilised by the plaintiff for purchasing the property covered by Ext. B1 sale deed. The other half amount was utilised for her personal use. Subsequently, all the sharers in the plaint schedule property had executed a partition deed as document No. 1252/1985 dividing the properties between the other sharers. The 6th defendant also contended that the suit for cencellation of the document of sale deed is barred by law of limitation. It is pleaded in the plaint that the 6th defendant who is her paternal uncle has tremendous influence over her, that during the lifetime of Bavunni, the 6th defendant had taken advantage of the influence on her managed to get Ext. A2 sale deed purporting to be a sale deed to the effect that she has assigned her rights over the property to him. It is pleaded that at the time of execution of Ext. A2 sale deed, the plaintiff had no right over the properties owned by her father being spes successionis, she has no transferable right. In substance, the plaintiff contended that Ext. A2 sale deed was executed under coercion and influence. The recitals in Ext. A2 sale deed reads that there are 14 items of properties. The 1st nine items were inherited by Bavunni and 6th defendant from their mother, Beevathu, items 10 & 11 were purchased out of the profits from those properties and items 12 to 14 were inherited by Bavunni and 6th defendant on the death of Beevathu. The recitals further reads that the plaintiff, defendants 1 to 4 and Bavunni are all had rights in the said properties. By Ext. A2 sale deed rights of the plaintiff in the plaint schedule properties were assigned to the 6th defendant for a consideration of Rs.1,000/-. Plaint schedule properties are the 14 items referred to in Ext. A2 sale deed. Out of Rs.1,000/- received by the plaintiff as consideration of Ext. A2 sale deed, Rs.500/- was paid for enabling the plaintiff to purchase the property covered by Ext. B1 sale deed. The plaintiff purchased Ext. B1 property on 22-03-1974 by utilising Rs.500/- received from the 6th defendant. Subsequently, Ext. A2 sale deed was executed by her on 09-12-1974 in favour of the 6th defendant. On the date of execution of Ext. A2, balance Rs.500/- was received by cash. Ext. B1 assignment deed was executed in March, 1974 and subsequently executed Ext. A2 sale deed during December, 1974. Ext. A2 sale deed was executed about three years after her marriage, at a time when she was residing along with her husband.

4. As per Ext. B1 sale deed, she purchased 1 acre of property. The plaintiff testified before the Court as PW 1 that after assigning Ext. A2 sale deed she informed her mother, brothers and sisters about the execution. The suit was brought up in the year 1986, about 11 years thereafter.

5. The Trial Court framed issues. PW 1 and DW 1 were examined and Exts. A1 to A4 and B1 were marked.

6. The questions raised in the appeal is as to whether the sale deed No. 255/1975 is liable to be set aside, whether the plaintiff is entitled to l / 6th share as claimed and as to whether the plaint schedule properties are partible. As per Ext. A2 sale deed, the plaintiff assigned her rights over the plaint schedule properties to the 6th defendant for a consideration of Rs.1,000/-, out of which Rs.500/- was paid by him for the purchasing the property covered by Ext. B1 sale deed and the remaining Rs.500/- was paid in ready cash. Ext. A2 assignment was made in the year 1974 after about three years of her marriage. Ext. B1 evidences assignment of one acre of property in favour of the plaintiff. The plaintiff failed to adduce any evidence to prove that the 6th defendant exerted influence for executing Ext. A2 sale deed. Except the bald statement that she was forced to execute Ext. A2 sale deed in favour of the 6th defendant because of 6th defendant's influence or by coercion, no evidence was adduced to prove any sort of influence exerted by the 6th defendant. Both Exts. A2 and B1 sale deeds recite that sale consideration for the assignment evidenced by Ext. B1 was paid by the 6th defendant, being part of the consideration for sale evidenced by Ext. A2. Ext. A2 sale deed is of the year 1974, but, the suit was filed in the year 1986, about 11 yeas thereafter. The facts and circumstances indicate that there is no reason to believe that Ext. A2 sale deed was executed under influence or by coercion as alleged in the plaint.

7. Admittedly, the plaint schedule properties originally jointly belonged to her father and the 6th defendant who are brothers. Ext. A2 sale deed was executed as if the plaintiff has got alienable right in the property that belong to her father. In the suit, the stand taken by the plaintiff is that she has no right in the properties to make a valid transfer of right in the plaint schedule properties. It is contended that she had only a chance of succession. The 6th defendant contended that the plaintiff is estopped from contending so, after receiving the consideration for her share in view of Sec.115 of the Evidence Act.

8. It is well settled law that where a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of S.43, if he has taken the transfer on the faith of that representation and for consideration. Referring to S.6(a) and S.43 of the Transfer of Property Act, the Apex Court in Jumma Masjid, Mercara Vs. Kodimaniandra Devian and Others, AIR 1962 SC 847 held as follows:

"Sec.43 deal 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. Sec.6(a) enacts a rule of substantive law, while Sec.43 enacts a rule of estoppel which is one of evidence. 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."

The Apex Court further held as follows:

"Sec.43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it."

9. The conditions for applicability of Sec.115 of the Evidence Act, in a similar situation, was considered by the Apex Court in Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai, AIR 1982 SC 121. In the above said decision the Apex Court laid down eight conditions for attracting Sec.115 of the Evidence Act. The Apex Court in Gulam Abbas Vs. Haji Kayam Ali and Others, AIR 1973 SC 554 had occasion to consider a similar issue and it was held that in such circumstances, a person in the position of the plaintiff will be estopped under S.115 of the Evidence Act if the expectant heir receives consideration and so conducts himself as to mislead an owner in to 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 said decision was followed by this Court in the decision reported in Damodaran Kavirajan and Others Vs. T.D. Rajappan, ILR 1992 (2) Ker. 105. In the said decision this Court held that the spes successionis right can be alienated by family arrangement. It was held that when 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 rest of others properties. It was held that the principle of estoppal mentioned in Sec.115 of the Act will apply in cases where there is relinquishment of one of the party's right to inherit in future.

10. The recitals in Ext. A2 sale deed shows that the plaintiff asserts that she was having a share in the plaint schedule property and it was on making such a representation that she seem to have sold her share in the plaint schedule properties to the 6th defendant. By her act made to the 6th defendant, the 6th defendant acted upon the words and parted with the consideration demanded by the plaintiff and hence the plaintiff shall not be allowed to deny that representation on the faith of which the 6th defendant acted. Therefore, the plaintiff cannot now turn around and say that she has no transferable right at the time of transfer. In this case, the properties jointly belong to the plaintiff's father and Bavunni. They were in joint possession and enjoyment of the property. At that period, the plaintiff approached her father claiming money in lieu of her share. The plaintiff's father and 6th defendant and other family members finally decided to pay the share of the plaintiff in cash as demanded by her. In fact, she approached her father and Bavunni at a time she had planned to purchase one acre of property. Since the father was unable to part with the money demanded by the plaintiff, at the request of the father of the plaintiff, his brother, 6th defendant agreed to pay and paid the amount. One half of the amount was utilised by the plaintiff to purchase the property covered by Ext. B1 document. The balance amount was utilised for her personal needs. Long thereafter, she preferred the suit alleging that the 6th defendant exerted influence and coercion and as a result, she was forced to execute Ext. A2 sale deed. Since there was no attempt to prove the alleged exertion of influence and coercion, the Trial Court rightly held that there is absolutely no reason to believe that the will deed was executed under coercion. Applying the principles laid down by the Apex Court and this Court, the Trial Court held that the spes successions of the plaintiff had been assigned by Ext. A2 and when she succeeded her right to the plaint schedule property on the demise of her father she was estopped from dishonouring the earlier assignment which she made to the 6th defendant. The Trial Court held that even if she had no title at the time of assignment, still she has relinquished all her claims over the plaint schedule properties after receiving Rs.1,000/- as consideration for the sale. The Trial Court also held that the transfer so made was protected by the rule of estoppel when she succeeded to the share in the plaint schedule properties on the death of her father. The Court held that it is after 11 years the suit was filed and the averments do not disclose as to when the coercion or undue influence ceased so that she was forced to file the suit. The Court also held that the suit is barred by limitation since the same is filed beyond three years from the date of execution of Ext. A2 sale deed. The contentions raised by the appellant were devoid of any merit and therefore, no interference can be made in the appeal.

In the result, the appeal fails and accordingly, dismissed. No order as to costs.