JUDGMENT

The plaintiff is the appellant. His suit for partition of his father's estate and for possession of 98/616 share in those properties with past and future mesne profits was dismissed by the District Munsif of Tenkasi, which was confirmed on appeal by the District Judge of Tinnevelly.

Plaintiff and defendants 1 to 7 are the children of one Sehu Mian Tharaeanar by his three wives. On 9-7-1934, Sehu Mian executed Ex. D.1, a gilt deed in which he made various dispositions, the construction of which is one of the tasks in this appeal. He died in April 1941. Prior to his death, the plaintiff, who was one of the donees under the deed sold a portion of the properties under Ex. D.2 for a sum of Rs. 200. In 1943, i.e, on 10-3-1943 the plaintiff alienated the other properties which were gifted to him under Ex. D.1 for a sum of Rs. 2235, the sale deed being Ex. D.3 Having sold away the properties which he got under the gift deed, he filed the suit, which has given rise to the present appeal, for the reliefs mentioned above.

While the 2nd defendant supported the plaintiff the other defendants contested the suit. The defences to the suit were

1. That the gift deed was a valid one.

2. That even if it were not valid as a gift, it amounted to a family settlement, and

3. That the plaintiff was estopped from questioning the validity of the settlement deed.

The trial Court answered the issues relating to the family settlement and estoppel in favour of the defendants and against the plaintiff and dismissed the suit. On appeal, the District judge agreed with the trial Court on the issue as to estoppel and in that view thought it unnecessary to consider whether the dispositions under Ex. D.1 could amount to a family settlement or not. In the result, the appeal was dismissed with costs.

The plaintiff, who is dissatisfied with the decision of the District Judge has preferred the second appeal. In support of the appeal, various contentions were put forward by Mr. Ramachandra Aiyar. The first point that arises on these contentions is whether Ex. D.1 evidences a valid gift in favour of the plaintiff and defendants or not. In spite of the strenuous arguments of Mr. Jagadisan to convince me that the gifts in favour of the several donees are valid and can take effect, I am satisfied that the dispositions made by the donor under Ex. D.1 are opposed to the provisions of Muhammadan law and therefore void. It is unnecessary for me to make a detailed examination of the various provisions in Ex. D.1 as the document prima facie appears to contain invalid gifts.

Mr. Ramachandra Aiyar, while arguing that the dispositions in favour of the other parties were void, being forbidden by Muhammadan law, wanted to save the gift in favour of the plaintiff by urging that there is nothing invalid so far as the disposition in favour of the plaintiff is concerned. I do not think I can give effect to this argument. On reading the documents as a whole and having regard to the fact that these gifts are interdependent on one another I should hold that Ex. D.1 as a gift deed was invalid.

Finding that it is a hopeless task to support the validity of Ex. D.1 as a gift deed Mr. Jagadisan attempted to have the various gifts upheld on the plea of a family settlement, which plea found favour with the trial Court. I do not think I can accept this argument. Apart from the question whether an invalid gift can be supported as a family settlement which seems to be doubtful in view of the decision in Phul Bee Bee v. R.M.P Chettiar firm(1) which decided that an invalid gift cannot be construed as a family settlement, it looks to me that it is futile to contend in this case that the gift deed evidenced a valid family settlement. For a family settlement, the parties thereto should have competing titles in respect of the properties in dispute. In Ramayya v. Lakshmayya in dealing with the argument that an arrangement, which was sought to be supported in that case was a bona fide settlement of family disputes, their Lordships of the Privy Council remarked thus:

“But what is important to notice is this, that Subbaramayya had no right to the properties except what he derived by the gift made in his favour by Bangaramma. Since it has not been shown that Subbaramayya had any competing title of his own in respect of the properties in dispute, there can be no basis in their Lordships' opinion for a valid family settlement between the parties which would bind the reversion. In Khunni Lal v. Gobind Krishna Narain(2) their Lordships pointed out but that ‘the true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is whether the alienee derives title from the holder of the limited interest or life tenant.’ In the present case, it is clear that what title Subbaramayya had to the properties was acquired under the compromise from the widow since he had no antecedent title of his own to them. In the circumstances their Lordships agree with the High Court that the claim of the contesting defendants to a two-thirds shares of the properties cannot be sustained on the basis of the arrangement in 1867.”

In support of his contention that Ex. D.1 could be viewed as a family settlement, Mr. Jagadisan placed reliance on a ruling of the Allahabad High Court in Poohar Singh v. Dulari Kunwar(3). But that decision is not an authority for the proposition that, to sustain a family settlement the parties thereto need not have competing titles. All that that case laid down was that the dispute need not be a present one and that the existence of a family dispute to be settled was not essential to the validity of a family arrangement. So, this contention also fails.

This leads me to the question whether the plaintiff was in any way estopped from claiming a share in the suit properties. In coming to the conclusion that the plaintiff was so estopped, the learned District Judge relied on a ruling of the Allahabad High Court in Latafat Hussain v. Hidayat Hussain(4) It was laid down there that a relinquishment or renunciation of a future right of inheritance is void as it is prohibited under Muhammadan law; but the heir apparent who so renounced that future right to inherit, may be estopped from claiming the inheritance when it falls due by this conduct. The opinion of the learned Judges was that while the relinquishment or renunciation of the future right of inheritance is void, a contract made by the heir for consideration not to claim that right, cannot be in any way illegal or forbidden by any law. I am unable to appreciate the distinction drawn by the learned Judges. I fail to see how a contract to enforce a thing which is void can be said to be valid. With respect to the learned Judges, I am unable to accept the proposition as a sound one. S. 23 of the Indian Contract Act lays down in unmistakable terms that it is only contracts which are not forbidden by law, that are valid and can be enforced.

Further this ruling seems to be opposed to the view taken in our High Court. In Aisa Beevi v. Karuppan Chetti(5), the question arose whether an arrangement by which an heir apparent renounced his future right for consideration to inherit property was a valid one and could be enforced. Sadasiva Aiyar J. took the view that as Muhammadan Law prohibits relinquishment of rights of future inheritance, whether for consideration or not such a relinquishment was void and it could not be relied upon as an estoppel, while Spencer J. came to a contrary conclusion. In the opinion of Spencer J. a renunciation of a right to succession is not opposed to the principles of Muhammadan law and when, under that arrangement the heir apparent accepts a benefit, he is estopped from repudiating the transaction by which he has, benefited. Dealing with the question of estoppel Sadasiva Aiyar, J. observed there can be no question of estoppel on a question of law and that the representation in order to work as an estoppel must be a material statement of fact and must have reference to present or past state of things.

On this difference of opinion, the matter came up for hearing before Sir John Wallis C.J and Bakewell, J. and Kumaraswami Sastriar J. The decision of these three Judges is reported in Asha Beevi v. Karuppan Chetti. The learned Judges agreed with the conclusion arrived at by Sadasiva Aiyar, J. on the ground that the transfer of an expectancy of that kind was not permitted by Muhammadan law. They did not expressly state that there could be no estoppel in such a case. However in view of the fact that the learned Judges agreed with Sadasiva Aiyar J. that the second appeal should be dismissed, which could only be on the basis that the heir apparent who entered into the arrangement referred to above was not estopped from claiming a share in the inheritance it can be reasonably assumed that they concurred with Sadasiva Aiyar J. on that point also. Even apart from it the principle that there can be no estoppel on a question of law or against statute cannot be open to serious doubt. In Kartar Singh v. Dayal Das, it was laid down by the Privy Council that there could be no estoppel on a statement of law relating to the validity of nomination of a person as a chela under the terms of a will: See also Virayya v. Bapayya.

Mr. Jagadisan sought to support the judgment of the Courts below on the question of estoppel by putting forward the following argument. By adopting Ex. D.1 as a valid one the plaintiff induced the defendants to believe that he would not claim a share in the suit properties and thereby led them to discharge the debts left by the donor. He referred to a number of cases for the position that a party can be estopped if he has so conducted himself as to induce other persons to act in a manner which would materially affect their position. It is unnecessary for me to refer to any of these decisions as the foundation, necessary for building such an argument, has not been laid in this case. There is absolutely no evidence in this case that any debts were discharged by the defendants subsequent to the alienation by the plaintiff under Ex. D.3 It follows that the plea of estoppel is not available to the defendants in this case.

The next point that arises for consideration is whether there is any scope in this case for the doctrine of election. Mr. Jagadisan urged that by virtue of the plaintiff having alienated a major portion of the properties under Ex. D.3 in 1943, long after succession opened which amounts to his having accepted the validity of the gift deed, he cannot be permitted to resile from that position and challenge Ex. D.1 I do not think I can agree with this contention. For one thing I am not able to see anything in Ex. D.3 which amounts to an acceptance of the whole gift deed as a valid one or a declaration of his intention not to claim a share in the properties as argued by the learned Counsel for the respondents. Secondly, even if there is any such acceptance no question of election arises, when one of the courses open to him is not a legal or lawful one. If the result of electing one of the remedies is to put a person to the necessity of choosing a course which is opposed to law this doctrine should not be invoked. I think the doctrine of election cannot be resorted to in order to cure an illegality. The following passage in Mulla's Transfer of Property Act III edition page 168 is pertinent:

“The doctrine of election cannot be resorted to in order to cure an illegality and a gift which infringes the rule against the perpetuities cannot be used to raise a case for election.”

In Vollaston v. King a testatrix under her marriage settlement had power to appoint a fund to her children. She appointed a part of the fund to her son C for life, with remainder to such persons as C might by will appoint. C was not in esse at the time when the power was created and therefore the remainder after C's life estate was vaid as contravening the rule against perpetuities. By the same will she made a general residuary appointment of the settled fund to her daughter to whom she bequeathed other benefits As the gift of the remainder to C's testamentary appointees was void the daughters were not put to their election. In a latter case in In re Oliver's Settlement Farwell J. said “the Court will refuse to aid a testator to commit any breach of the law.” To show that the passage extracted above does not contain a sound principle of law, Mr. Jagadisan cited to me a decision of Kekewich J. in In re Bradshood v. Bradshood where the learned Judge was not inclined to agree with the principle embodied in the cases referred to in that passage.

But in Cook v. Frederick the Court of appeal was not prepared to follow the opinion of Kekewich J. and preferred to follow rulings which took the contrary view. Cozens Hardy Master of the Rolls who delivered the judgment of the Court, expressed the opinion that the view taken by the majority of the judges which was opposed to the one adopted by Kekewich J. in In re Bradshood was a sound one and he did not think that he could usefully add anything more than to say that “I desire for myself to adopt not merely the decision but the careful and elaborate reasoning of Farwell J. in the case of In re Oliver's Settlement.” It may be mentioned that the last mentioned case is one of the cases relied on by the learned author in support of his view.

Mr. Jagadisan then referred to Douglas Menzies v. Umphelby and contended that the facts in that case are analogous to the present one and that I should decide this case on the same lines. Even if I apply the principle laid down in that decision to the present case the plaintiff cannot be nonsuited on the doctrine of election. All that was laid down in Douglas Menzies v. Umphelby was that a person who claims under law and against a will cannot claim a legacy given to him under the will, i.e, a person who defeats a will in part cannot claim a legacy under another part of the will. Giving effect to the principle laid down in that case, all that could be legitimately argued is that the plaintiff who was trying to defeat the gift deed could not get any benefit under another part of the same document and that he should be called upon to renounce the benefit which he has derived under the gift deed. But, in this case, the same result will be reached as a corollary to my having held that no disposition under Ex. D.1 will take effect for the reasons stated above. The resulting position is that Sehu Mian Tharaganar would be deemed to have died possessed of the entire estate including what was gifted to the plaintiff and that the parties in the suit are entitled to share in accordance with the provisions of Muhammadan law. What follows is that the plaintiff will be entitled to a share in the estate left by his father under Muhammadan law along with the defendants. For this purpose the property alienated by him and the property gifted to the 2nd defendant but which has not been included in the suit, will also form part of the property to be partitioned amongst the various sharers.

In the result there should be a preliminary decree for partition. In allotting the shares to the parties the suit properties and the properties alienated by the plaintiff not only under Ex. D.3 but also under Ex. D.2 as well will be valued as on the date of the allotment of the shares and the properties alienated by the plaintiff should be allotted to the share of the plaintiff as a part of his share.

Mr. Jagadisan argues that it should be made clear in the judgment that if the properties alienated by the plaintiff should exceed the value of the share to be allotted to him the plaintiff will not be entitled to anything more by way of a share. I do not think it is necessary for me to state it because if as a matter of fact, the properties sold by him under Exs. D.2 and D.3 are equivalent to or in excess of the share to be allotted to him, he will certainly not be given anything more.

It should also be made clear that plaintiff would also be liable along with the other sharers for any debts that might have been left by their father. It follows that the decree of the lower appellate Court, which confirmed that of the trial Court cannot be sustained and ought to be set aside. On the mistaken view of the law, the Courts below dismissed the suit instead of passing a preliminary decree on the terms indicated above.

In the result the appeal is allowed and the suit is remanded to the trial Court for passing preliminary decree and for consequential proceedings. The appellant will get a refund of the court-fee paid by him in this appeal and in the lower appellate Court also. The other costs incurred so far will abide the result. Leave refused.

V.C.S