Abdul Kafoor And Another v. Abdul Razack And Another.

1. This appeal is under Clause 15 of the Letters Patent against the judgment of Krishnaswami Nayudu, J. in S. A. No. 1407 of 1946. That arose out of a suit filed by the appellants against the respondents for partition and separate possession of the suit properties. One Vappu Rowther was the owner of the properties, He died in 1936. He left behind him a daughter Savuravan Beevi through his predeceased first wife, his second wife, Zuleka Beevi and a son by her, the first respondent to the appeal. Zuleka Beevi died after the succession to the estate of Vappu Rowther opened.

Savuravan Beevi died in 1944 leaving behind her, her children the appellants as her heirs. The appellants claim that their mother was entitled to a share in the properties as an heir of Vappu Rowther, that on the death of their mother they were entitled to the same. The defence of the first respondent was that Savuravan Beevi even during the life-time of Vappu Rowther had executed a release Ex. B. 6 on 13-1-1936 relinquishing all her rights of inheritance in the properties of her father Vappu Rowther in consideration of a payment of Rs. 300.

To secure that sum of Rs. 300 and as part of the same transaction Vappu Rowther is said to have executed a simple bond, Ex. B. 12 on the same date in favour of his daughter, Savuravan Beevi promising to pay her with interest at four kalams of paddy per cent per annum. The first respondent, therefore, pleaded that by virtue of the release and the benefit she obtained under Ex. B. 12 the appellants' mother had surrendered all her rights in the estate of her father and that she was also estopped from claiming a share. The first respondent further pleaded that he would be entitled to benefit under Section 43 of the Transfer of Property Act.

Alternatively he claimed that in case the partition were to be granted, he should be compensated for improvements effected on the property, the debts of the estate which her discharged and the funeral expenses of Vappu Rowther incurred by him. The learned District Munsif negatived the contentions of the first respondent and held that the release was invalid and that the appellants would be entitled to a partition and separate possession of 7/24 share in the properties.

He also hold that interest paid under Ex. B. 6 worked out at slightly more than the legitimate share of income to which Savuravan Beevi would be entitled and directed the defendants to refund a sum of Rs. 38/13/0 together with a sum of Rs. 50 which was received towards the principal of Ex. B. 12. The first respondent filed an appeal to the Sub-Court, Mayuram, against the preliminary decree for partition granted against him by the learned District Munsif.

The learned Subordinate Judge agreed with the District Munsif and held that Ex. B. 6 was not valid, that Savuravan Beevi and her sons were not estopped from claiming partition and that the first respondent would not be entitled to the benefit of Section 43 of the Transfer of Property Act. He further held that the appellants should pay their share of improvements effected and the debts discharged by the first respondent which the learned Judge assessed at Rs. 596/7/3. In the result the preliminary decree for partition was confirmed subject to the modification that the appellants should pay a sum of Rs. 685/5/0 to the first respondent.

Against that decree the first respondent filed a second appeal to this court. Krishnaswami Nayudu, J., who heard the appeal held that the release deed Ex. B. 6 was invalid and that the appellants would not be estopped from claiming partition by reason of Section 115 of the Evidence Act. The learned Judge, however, held that apart from the rule of estoppel provided for in Section 115 of the Evidence Act there were other kinds of estoppel under which it could be held that a family arrangement was entered into by Savuravan Beevi with her father who was benefited by it and therefore, binding on the parries concerned.

He, therefore, allowed the appeal and dismissed the suit and directed each party to bear their respective costs. The appellants have now filed the above appeal against the judgment of Krishnaswami Nayudu, J.

2. Before considering the several contentions raised by the learned Advocate on either side it is necessary to set out the terms of Ex. B. 6. They are as follows :

"Deed of release executed on the I3th day of January 1936 in favour of Vappu Rowther .... by Savuravan Beevi Ammal, eldest daughter of the said Vappu Rowther .... whereas you have me a daughter by your senior wife and a son by name Razak by your junior wife, whereas there is due to me a one third share in the properties according to our caste custom and whereas, I have agreed to receive from you a sum of Rs. 300 and to execute a release in respect of my rights over the immoveable and moveable properties belonging to you, the sum received by me in the matter of getting a simple debt bond executed by you is Rs. 300. As this sum of Rs. 300 has been received by me in the aforesaid manner I have no right whatever over your immoveable and moveable properties. Hereafter there will be between us friendly relationship only and not relationship as regards money matters. To the said effect is the deed of release executed by me with consent."

It is not very clear from the document as to whether any future right of inheritance was at all released, and indeed during the last stages of the argument the learned Advocate for the respondent contended that the releasor should be deemed to have surrendered her then existing claim to the property. If that were so, the release merely made Vappu Rowther's title to the properties perfect and on his death Savuravan Beevi would under the law of inheritance be entitled to her legitimate share.

But the contentions on behalf of the first respondent in all the courts have been that Ex. B. 6 amounted to a valid, release of her right of contingent inheritance to her father's estate. It is now well settled that, even though Section 6(a) of the Transfer of Property Act does not apply to Muhammadans, a transfer or renunciation of a contingent right of inheritance is prohibited by the Muhammadan law itself.

In Asa Beevi v. Karuppan Chetty, ILR 41 Mad 365 : (AIR 1918 Mad 119), a Bench of three Judges of this court held that the chance of a Muhammadan heir-apparent cannot validly be released. The attempt on behalf of the respondent in the courts below as well as in this court has been to justify Ex. B. 6 on other legal grounds.

3. The first contention on behalf of the first respondent, which was accepted as sound by the learned Judge, was that Ex. B. 6 amounted to a family arrangement. In the written statement filed by the respondent no specific plea was taken that Exs. B. 6 and B. 12 amounted to any family arrangement. The only contention was that it was a release and as a release it was valid to extinguish the releasor's rights of future inheritance. Ex. 6 was not an arrangement in the sense that any other member of the family got a benefit under it.

There was neither a settlement nor any arrangement by Vappu Rowther as a result of Ex. B. 6. He continued as owner and died intestate. Reliance was placed on a decision reported in Latafat Husain v. Hidayat Husain, ILR 58 All 834 : (AIR 1936 All 573). In that case a Muhammadan gentleman created a wakf under which he appointed his wife as Muthavalli and constituted her children as beneficiaries. As part of the same transaction a deed of release was executed by the wife in favour of her husband under which she relinquished her claim to her dower and her contingent right of inheritance in her husband's estate.

After the death of the settlor the wife filed a suit for partition. The learned Judges, while accepting the position that under the Mahomedan law a relinquishment or renunciation of a future right of inheritance was not in itself valid so as to bind the maker, in the sense that the estate passed to the person in whose favour the relinquishment is made, upheld the release on other grounds. A distinction was made by them between relinquishment in the nature of gift or transfer of a contingent right, and a mere agreement of contract not to claim the contingent right when the succession opened in future.

In the former case they held that the relinquishment was void, but in the latter they held that it was valid. They further supported the relinquishment on the basis of estoppel and as a family arrangement. With all respect, we are unable to agree with the learned Judges who decided, ILR 58 All 834 : (AIR 1936 Alt 573), that a distinction can be made between a case of actual relinquishment of the chance of inheritance and a contract to relinquish it in future. In Jagannadha Raju v. Varapa Lakshmi Narasimma, ILR 39 Mad 554 : (AIR 1916 Mad 579), it has been held that a contract for sale of expectancies is void in India under the provisions of Section 6 of the Transfer of Property Act and Section 23 of the Indian Contract Act. Tyabji, J. observed at p. 559 (of ILR Mad) : (at p. 581 of AIR):

When property is conveyed in future there is said to be a transfer of property no less than when it is conveyed in the present; (Section 5 of the Transfer of Property Act); and the Legislature has provided that the chance of an heir-apparent cannot be a subject of conveyance in present or in future. An agreement, therefore, to convey in future such a chance cannot be considered a valid contract because it is an agreement to transfer that which the law says is incapable of transfer. The 'object' of such an agreement is of such a nature that if permitted, it would defeat the provisions of Section 6 (a) of the Transfer of Property Act and Section 23 of the Indian Contract Act.. . . . . It would be defeating the provisions of the Act to hold that though such hopes or expectations cannot be transferred in present or future, a person may bind himself to bring about the same results by giving to the agreement the form of a promise to transfer not the expectations but the fruits of the expectations by saying that what he has purported to do may be described in a different language from that which the Legislature has chosen to apply to it for the purpose of condemning it.

4. This decision has been approved by their Lordships of the Privy Council in Annada Mohan Roy v. Gour Mohan Mullick, ILR 50 Cal 929 : (AIR 1923 PC 189). In view of the above decisions we hold that the release cannot be supported on the ground of its being a mere contract not to claim a share when succession opens.

5. The second ground on which the learned Judges of the Allahabad High Court based their decision was that the wakf could be supported on the ground of a family arrangement. Krishnaswami Nayudu, J., accepted that view, holding that the releasor was bound by a kind of equitable estoppel and could not go behind the transaction as it amounted to a family arrangement.

A family arrangement has been defined in 17 Halsbury's Laws of England (Simonds Edn) at page 215 as

"an arrangement between the 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 preserving family property or peace and security of the family by avoiding litigation or by saving its honour .. .. .."

.

The agreement may be implied from a long course of dealing.

Judged by that test Ex. B. 6 cannot amount to a family arrangement, as there has been no agreement between the members of the family or any arrangement with regard to the property. The property was left where it was, and the existence of an ex facie invalid release like Ex. B. 6 cannot result in any disposition of property between the other members of the family. If the first respondent's contention is accepted, Ex. B. 6 would only have the result of interfering with the lawful succession to property, in that the first respondent and his mother alone would be enabled to inherit excluding Savuravan Beevi.

Such an agreement would be clearly invalid. The arrangement, if any, cannot even be considered as a testamentary disposition by Vappu Rowther (even within the limits allowed by the Muhammadan law) for there is no such disposition by him. No family arrangement can be inferred by the subsequent conduct of Savuravan Beevi and her children collecting the interest on Ex. B. 12, and such conduct was referable to Ex. B. 6 especially as it is not the case of the first respondent that there was any arrangement between Savuravan Beevi or her heirs and himself after the succession to his father's estate opened.

6. The release could not be claimed as a compromise of doubtful claim or disputed rights. Admittedly Savuravan Beevi had no rights in the property of her father on the date of Ex. B. 6. The learned advocate for the respondent relied on the decision reported in Mt. Dasodia v. Gaya Prasad, ILR (1943) All 411: (AIR 1943 All 101) (FB), in support of his contention that for a bona fide dispute, a doubtful claim or settlement on the basis of an antecedent title is not absolutely essential in all family arrangements.

The arrangement in that case was by way of partition between two daughters who inherited the estate of their father and also a son of a predeceased daughter who had no title then to the property being only a reversioner. On the facts of that case there could be no difficulty in coming to the conclusion that such an arrangement was valid, but the question that was referred to the learned Judges was whether it was essential for the establishment of a valid family arrangement that it should be made in contemplation of a doubtful claim or an actual dispute or controversy with regard to a doubtful claim between the parties to the family arrangement.

The learned Judges held that in case of settlement of family disputes and partition it was not necessary that there should exist a doubtful claim; existence of consideration would be enough. That decision was based on the well known principle that, while co-heirs effect a partition between themselves, it was open to them in order to avoid family friction to give some property to a relation though such a relation may have no right.

The heirs have a right to the property and there would be nothing objectionable in their disposing of their property. That would essentially be an arrangement between the heirs. In 17 Halsbury's Laws of England, p. 217, this principle is stated thus :

"Agreement for division of family property by way of compromise of a family quarrel or litigation about a disputed or lost will or even to prevent family friction where there is no question as to devolution of property, nor any disputed right there being some consideration for the arrangement other than love and affection.'' Those considerations cannot apply to this case, where there was neither a partition nor arrangement between the heirs of a person after succession opened. The other cases relied on, on behalf of the respondent, are cases which illustrate the well-known proposition, that the validity of a family arrangement does not depend on the existence of an actual dispute.

In Rai Kumar Singh v. Abhai Kumar Singh, AIR 1948 Pat 362, it was held that avoidance of a family dispute and not the existence of it is a ground which would validate a family arrangement. In Jatru Paham v. Ambika Jit. Prasad, (S) , the principle of the decision in ILR 1943 All 411 : (AIR 1943 All 101) (FB), was accepted, and it was held that the existence of a family dispute is not essential to validate a family arrangement. The law on the subject has been stated in Mullah's Transfer of Property Act (4th Edn. p. 55) in the following terms :

''Compromise and family arrangements do not operate as transfers of the reversionary interest but as stated by the Judicial Committee in Rani Mewa Kuwar v. Rani Hulas Kuar, 1 Ind App 157 at p. 166 are based on the assumption that there was an antecedent title of some; kind in the parties and the agreement acknowledges and defines what that title is."

7. In Ramayya v. Lakshmayya, ILR 1943 Mad 1 : AIR 1942 PC 54, it was held that an arrangement in settlement of certain disputes by which a widow of a deceased Hindu recognised the title of the donee of her husband's properties from her mother-in-law cannot amount to a valid family arrangement so as to bind the reversion as the donee had no antecedent title of his own apart from the invalid alienations by the mother-in-law. This question has recently been considered by the Supreme Court in Sahu Madho Das v. Mukand Ham, 1955-2 Mad LJ 1: ((S) , Bose, J., observed as follows :

It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of others as they had previously asserted it to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement.

It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore, no conveyance is necessary." Judged by this test, Exs. B. 6 and B. 12 cannot constitute any family arrangement. There was no title or claim by Savuravan Beevi with regard to the properties. There was no arrangement by which title vested in any other person as a result of the arrangement. The property belonged to and was always that of Vappu Rowther, and the release was nothing more than an invalid disposition of a right of inheritance and can hardly form the basis for any family arrangement.

The next ground of the decision in ILR 58 All 834: (AIR 1936 All 573) was estoppel. In this connection reference may be made to the decision in ILR 41 Mad 365 : (AIR 1918 Mad 119). That was an appeal under Clause 15 of the Letters Patent against the judgment of Sadasiva Aiyar, J., who differed from Spencer, J. That decision is reported in Asa Beevi v. Karuppan Chetty, 41 Ind Cas 361 : (AIR 1918 Mad 743). Although the learned Judges in ILR 41 Mad 365 : (AIR 1918 Mad 119) affirmed the decision of Sadasiva Aiyar, J., they did not diem-selves consider the question of estoppel.

Sadasiva Iyer, J. held that Section 115 of the Evidence Act could not estop any person from denying the legal effect of a transaction to which he is a party but only the truth of a thing which he intentionally caused to the other party to believe. The thing did not refer to the legal validity of an agreement to relinquish a spes successionis when it actuated nor to an intention which has to come into existence in the future, for example, when the succession opened.

"The intentional misleading under the section refers to the present existence of a right or a fact and not a future metaphysical possibility."

The view of Sadasiva Aiyar, J. receives support from the principle of the decision in ILR 39 Mad 554 : (AIR 3916 Mad 579) and ILR 50 Cal 929: (AIR 1923 PC 189).

8. The learned advocate for the respondent next relied on a decision reported in Kanhailal v. Brijlal, ILR 40 All 487 : (AIR 1918 PC 70), in support of the position that the reversioner can be estopped in regard to his future claim. A widow became entitled to her husband's estate. Her title to the property was disputed by a person claiming to be her adopted son and two other widows in the family. The matter was compromised as a result of which one share was taken by the widow, another by her daughter and the third and the fourth by two other widows of the family. The adopted son was not allotted any share in the property.

The widow subsequently relinquished her share in favour of the adopted son and he got benefit of the same. The Privy Council held that the adopted son, though he was not allotted any share in the family property, obtained the share allotted to his adoptive mother and he was, therefore, precluded from claiming as reversioner by his having been a party to the compromise. The principle of this decision has been accepted in cases regarding election or estoppel by a reversioner to which reference will be made presently.

9. Krishnaswami Nayudu, J. ccepted the decision of Sadasiva Aiyar, J., in 41 Ind Cas 361 : (AIR 1918 PC 70) in that there could be no estoppel under Section 115 of the Indian Evidence Act. But the learned Judge hold that there was an equitable estoppel which would prevent Savuravan Beevi from repudiating the family arrangement. We have already hold that there could have been no family arrangement in the circumstances of the case.

If there was an arrangement the binding nature of it was by virtue of the arrangement itself and not by any rule of estoppel. In Caspers on Estoppel, at p. 71 (Article 61) it is stated,

It has been said in most cases in which the doctrine in Pickard v. Sears, (1837) 6 Ad and El 469 has been applied, the representation is such as to amount to the contract or licence of the party making it.

When the contract itself is invalid there can be estoppel.

10. Learned Counsel for the respondent then tried to support the judgment of Krishnaswami Nayudu, J. on the ground that Savuravan Beevi and her heirs should be deemed to be precluded from claiming any interest in the properties of Vappu Rowther by reason of the doctrine of election. In support of this contention he invited our attention to the decision of the Supreme Court in Sahu Madho Das v. Mukund Ram, That case arose out of a suit by a reversioner, that is the daughter's son of a Hindu gentleman.

The widow came into possession of the property after the death of the male owner. She made an oral arrangement in which her three daughters were given certain shares in the property absolutely, and her grandson the plaintiff was also given some properties'. The plaintiff accepted the gift in his favour by the widow. A question arose whether he was bound by the arrangement having regard to the fact that he accepted the gift. On the facts of that case, their Lordships held that the plaintiff has assented to the arrangement. Bose J. observed at p. 12 (of Mad LJ) : (at p. 492 of AIR),

"The principle we are applying is not estoppel. It is the rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it from going tack on that and avoiding it at a later stage."

The learned Judge relied on the decision in Rangasami Gounden v. Nachiappa Gounden, ILR 42 Mad 523 : ( AIR 1918 PC 196). This rule is based on the principle, that a Hindu widow's alienation is good till it is avoided by the reversioner, and if the reversioner precluded himself from avoiding it by election, the alienation was valid. This principle cannot refer obviously to a case of renunciation of an expectancy by a presumptive Mahomedan heir which is void ab initio.

11. In Sulaiman Sahib v. Ibrahim Meeral Beevi, , it was held in a case similar to the present that the renunciation by a Muhammadan presumptive heir before the inheritance opened was invalid and could not be justified as a family arrangement or on the basis of estoppel or election. It is well settled that the doctrine of election would not be available to cure an illegality. Vide Mullah's Transfer of Property Act, 4th Edn. at p. 158. Savuravan Beevi had no right to Vappu Rowther's property so long as he was alive and there was, therefore, no question of her electing between two inconsistent rights. A plea of a bar of the plaintiff's right by reason of election is essentially a plea in fact (vide 14 Halsbury's Laws of England, 3rd Edn. 596) and as the respondent laid no basis for it by letting in the necessary evidence, the plea could not be sustained.

12. The next contention on behalf of the respondent was that the release "though void was not so void as to be incapable of ratification." In this connection, learned advocate for the respondent referred to the fact, that Savuravan Beevi and her sons accepted Ex. B. 12 even after the death of Vappu Rowther and proceeded to collect 12 kalams of paddy allowed under it during the subsequent years.

Both the courts below, however, have refused to draw any inference that they did so in confirmation of Ex. B. 6. Even assuming that it was so, it is rather difficult to accept the contention that. a void transaction could be ratified. For this position learned Counsel relied on the decision in Subramanian Chettiar v. Sankara Veluyudham Chettiar, 62 MLJ 479 : (AIR 1931 Mad 804), which related to an ante-adoption agreement entered into by the natural and adoptive fathers of a person.

By virtue of the power reserved in the ante-adoption agreement the adoptive father executed two wills in favour of certain beneficiaries. The adopted son after attaining majority affirmed the dispositions. The learned Judges came to the conclusion that the adopted son had ratified the whole of the arrangement under which he himself became an adoptive son and that the dispositions by the adoptive father were binding on him.

13. The case reported in Adimoola Padayachi v. Kasi Ammal, 1943-2 Mad LJ 178: (AIR 1943 Mad 701) was next relied on. That was a case of division between two nearest rcversioners of the properties of a Hindu during the life-time of the widow. One of the two reversioners surviving the widow, contrary to the arrangement, tried to get at the entire properties. It was held that all parties acted on the footing that the reversion had opened even on the date of the arrangement, and that the reversioners when they divided the properties did not divide a more spes suecessionis and, therefore, the surviving reversioner was estopped from claiming the entire properties.

The decision in Anant Rai v. Bhagawan Rai, AIR 1940 All 12, was then referred to show that a quondam minor who contracted a debt during his minority paid off the debt on his attaining majority but later sought to get back the money voluntarily paid was not allowed to do so. The decisions in Gregson v. Udoy Aditya Deb, ILR 17 Cal 223 (PC) and Roy v. Thakur Ram Jiwan Singh, ILR 33 Cal 363, were cited. In ILR 17 Cal 223 (PC), there was a fresh agreement after the disability had ceased, which had the effect of completing the document. The decision in ILR 33 Cal 363 in so far as it held that a void agreement could be rectified was not accepted as good law in Maganlal v. Ramanlal, AIR 1943 Bom 382.

We cannot agree with the contention of the learned advocate for the respondent, that Ex. B. 6 could be validated by subsequent ratification. Learned Counsel also relied on the provisions of Section 43 of the Transfer of Property Act. It is, however, conceded that on the date of Ex. B. 6 neither Savuravan Beevi nor her father were conscious of the illegality of Ex. B. 6. There was no representation by her on which the father was misled or even acted. Under the circumstances it is unnecessary to consider the decision Jumma Musjid v. Devaiah (FB), which was cited for the respondent.

14. The last contention of the learned advocate for the respondent was that the conduct of Savuravan Beevi after the death of her father, Vappu Rowther, amounted to a fresh arrangement between her and the other heirs. In support of this contention there was an application C. M. P. No. 1532 of 1958 for the amendment of the written statement of the first defendant. To a question from the Bench, learned Counsel frankly conceded that it was not the case of his client that any fresh arrangement was entered into after the death of Vappu Rowther.

He claimed that there was no such arrangement in fact but that it should be inferred in law. It is rather difficult to accept this contention. There can be no implication in law when in point of fact such an arrangement has admittedly not been entered into. The conduct of Savuravan Beevi and her heirs, if at all, is referable only to Ex. B. 6 and not to any other arrangement. There is therefore no substance in this contention either.

15. The result is that this appeal is allowed and the decree of the lower appellate Court restored but in the circumstances of the case we make no order as to costs. C. M. P. No. 1532 of 1958 is dismissed.