JUDGMENT

1. PW. 1 (father and power of attorney holder of plaintiffs) and the 1st defendant are the children of deceased Harihara Iyer, who had three other sons they were followers of Hindu Mitakshara law. The joint family had some little ancestral properties. There were also self acquisitions in the names of the father and the sons. Harihara Iyer proceeded as if all these self acquisitions, whether in his name or in the names of his sons, were exclusively with his personal funds and belonging to him absolutely. On that assumption in 1124 he executed Ext. A4. styling it to be a settlement deed. All the ancestral properties and self acquisitions in the names of all the six persons were included in it and settled as if he is the absolute owner. He took one share for himself which includes plaint schedule 4 cents and a residential building purchased in the name of the first defendant in 1123 under Ext. A3. Other properties were settled in the name of the sons separately excluding P.W 1 who is alleged to have relinquished his rights. He provided that during his life time his sons will not have any right and that he will be free to change the disposition and do anything with the properties. The document was provided to take effect only after his death subject to the enjoyment of his wife after his death. The provision regarding the properties taken for his share is thar after his death his wife should assignment them to the plaintiffs or in the absence of such an assignment they should get the properties absolutely after the death of his wife. Second defendant is the wife of the first defendant. Harihara Iyer died on 5-7-1958 and his wife died on 28-12-1973. Defendants are in possession of the plaint schedule property. The suit is for declaration of title and recovery of possession with mesne profits on the strength of title obtained under Ext. A4. The stand taken by the first defendant was that he is the absolute owner under Ext. A3 and the father had no right to include his property in Ext. A4 The inclusion is said to be against his objection. Second defendant contended that at time of Ext. A3 first defendant was not able to get possession, because the property was outstanding with one Vasudeva Iyer as the tenant who had also an agreement for sale in his favour from the landlord on the basis of which he advanced Rs. 1,000/. She claimed to have obtainded those rights under Ext. B18. Her further case is that first defendant orally gifted his rights to her and she is therefore the absolute owner.

2. On the basis of the evidence on record, both the courts below found that the claim put forward by the second defendant is bogus. I am in full agreement with those findings. Both the courts below decreed the suit on the finding that even though Ext. A3 stands in the name of the 1st defendant it is joint family property because the acquisition was with joint family funds. Therefore the inclusion of the property in Ext. A4 was justified and the claim of the 1st defendant was negatived. S.A 284 of 1982 was filed by the first defendant and S.A 335 of 1982 by the 2nd defendant. S.A 335 of 1982 has only to be dismissed for the reasons stated above.

3. But I am constrained to observe that both the courts below went wrong thoroughly in coming to the oonclusion that the suit property is joint family acquisition with joint family funds. Harihara Iyer had no such case in Ext. A4. Till the time of the filing of the suit nobody raised such a contention. There was no such case in the plaint. P.W 1 who is the only witness examined on the side of the plaintiff also did not swear to such a case. The only contention in the plaint and in Ext. A4 was that it is a benami acquisition in the name of the 1st defendant With the separate funds of Harihara Iyer, who was the real owner. The parties were at issue only on the question whether Harihara Iyer was the real owner and first defendant was only a benamidar or whether first defendant was the real owner. The pleadings were not amended to putforward any other case.

4. In order to establish that the sale consideration for Ext. A3 proceeded from him, the first defendant contended that he had a business from which amounts were taken. The accounts were produced as Exts. B4 and BS. Even at that time the stand taken by Pw. 1 in cross-examination and the stand taken by the plaintiffs in the cross-examination of the 1st defendant was only that the business was that of father Harihara Iyer personally. It was only at the time of arguments that the plea of benami was given up and a contention of joint family acquisition was taken up. Both the courts below accepted that contention. Whether the business represented by Exts B4 and B5 from which the funds for Ext. A3 was taken was joint family business of the separate business of Harihara Iyer or the 1st defendant was not at all matter in issue between the parties.

5. Plaintiffs changed their siand at the time of arguments only because they were sure that on the plea of benami they could only fail. Normally the apparent purchase will be treated as the real owner. The apparent tenor of the title deed will have to be respect by courts. Burden of proving that a particuar sale is benami and the parson appearing as purchaser is not the real owner always rests upon the person asserting so. The burden has to be discharged by rebutting the presumption arising out of the apparent tenor of the document. Positive evidence of a definite character which would either strictly prove the factum of berami or establish circumstances reasonably and un-misakably raising an inference of that fact is absolutely necessary. The essence of benami is the intention of the parties. Motive for taking the benami document also plays an important role in most of the benami transactions (Mariam Beevi v. Abdurasak (1962 KLJ 1261). Often such intention or motive may be concealed and incapable of easy proof. But that difficulty is not capable of diluting the serious onus or justify acceptance of mere conjectures or surmises as a substitute for proof. Sufficiency of proof of benami is a question of fact on which no hard and fast standard or acid test, uniformly applicable in all situations could be laid down. Normally the considerations weighing with the court in such cases are (1) source of purchase money, (2) nature and possession of the property after purchase, (3) motive for giving the benami colour, (4) possession of title deeds and payment of tax, (5) relationship of parties, and (6) conduct of the parties after sale. Source of purchase money is a very important consideration. In the absence of acceptable evidence on these aspects the ostensible owner will be considered by the courts as the real owner. The mere circumstance that he was not able to prove passing of consideration from him or that he had sufficient funds cannot negative his ownership (M. Nagendrah v. M. Ramachandraiah, (1969) II SCWR 568 and Jayadayal Poddar v. Aibi Hazra ((1974) 1 SCC 3 : AIR 1974 SC 171).

6. On none of these aspects there is evidence on the side of the plaintiffs on whom burden lies. Exts. B2 and B3 show that the appellant had funds. It is admitted that he was and is an Advocate having income. The fact that he was running a business and even now continuing it is also not disputed. Exts. B4 and B5 also show that consideration passed from him. The fact that it was the 1st defendant who went for taking the agreement and the sale deed and paid the amount is also not disputed. The only case is that he acted as an agent of the father and the amounts were paid by the father. That aspect is not proved the document was produced for registration and got back by the first defendant.

7. The subsequent conduct also shows that the 1st defendant alone was asserting ownership and possession over the property. Immediately after Ext. A3 he issued a notice to the vendor complaining that he was not able to get possession of the building. For that he got Ext. B7 reply on 15-4-1123 stating that a tenant is in occupation and he should evict him. There is no case that Harihara Iyer evicted the tenant or came into possession. On the other hand, it is admitted even by P.W 1 that at least from 1126 1st defendant is continuously residing in the building. Though he said that the father was in occupation till then and the 1st defendant was only permitted by the father, there is no evidence to that effect. Ext. B19 series tax receipts show that the 1st defendant was paying tax. As is held in Vasudeva Kurup…* v. Ammini Amma & Others… (1964 KLT 468) this is an important circumstance when taken along with other factors. When the father was keeping quiet even after Ext. A4 it was the appellant who sued a neighbour for injunction when his possession was at empted to be disturbed. Exts. B20 to B22 establish this fact. Even in Ext. A41 cent of land and a building covered by Ext. A3 was excluded. The explanation of P.W 1 is that possession of the said portion was not obtained under Ext. A3. But Exts. B23 and B25 show that even regarding that 1 cent and building the appellant was attempting to safeguard his title and possession when a third party filed a B.R.C.O.P Ext. A12 shows that the son of the appellant dealt with that portion. Though Ext. A4 was in 1948 or 1949 and the father died only in 1958, the appellant hypothecated the plaint schedule property in 1951 in favour of the Palai Central Bank under Ext. B9 for raising funds. Ext. B10 is copy of the decree obtained by the Bank. In that case the appellant filed a debt relief petition claiming the plaint schedule property for his ¼th share. In that petition he did not include any other property covered by Ext. A4. By orders of court as evidenced by Ext B8 he was forced to include one such item also. The allottee of that item under Ext. A4 along with the widow of Harihara Iyer filed a claim petition. The widow's claim was regarding the plaint schedule property on the basis of the right under Ext. A4. Ext. B11 order in that claim petition shows that the appellant was contesting the claim of the mother under Ext. A4 on the basis of Ext. A3. He succeeded and the mother was defeated. Ext. B11 is in December, 1971. Admittedly, even now the appellant is in possession Neither Haritiara Iyer nor his widow were able to get possession at any time. Subsequent conduct is evident from what is stated above. It is clear that the appellant was all along consistently opposing Ext. A4 for the purpose of preserving his claim under Ext. A3. He has also spoken to the fact that inclusion of the plaint schedule property in Ext. A4 was strongly opposed by him.

8. It was in the background of these facts and circumstances that the plaintiffs were forced to give up the plea of benami and switch on to a case not pleaded. Pleadings of the parties form the foundation of their case on which issues are raised, evidence let in, and findings arrived at for deciding litigations Parties are bound by pleadings. A case not set up cannot be allowed to be proved. If evidence is let in outside the pleadings, it cannot normally be looked into. From the pleadings, the opposite party must know what is the case he has to answer and prove. Otherwise the rules of pleadings and the provision for amendment of pleadings for deciding the real question in controversy between the parties will become meaningless. Decision of a case cannot normally be on grounds outside the pleadings. It is a case pleaded that alone could be proved. At least by inclusion of the necessary pleadings by amendment a relief cannot be granted even if there is evidence. (See Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar. (AIR 1953 SC 235), Bhagat Singh v. Jaswant Singh (1961 (I) KLR 539), S.C.R Tiles Manufacturers v. State of Gujarat ((1976) 4 SCC 601 : AIR 1977 SC 90) and Vinod Kumar Arora v. Surjit Kaur. ((1987) 3 SCC 711 : AIR 1987 SC 2179).

9. In order to answer these lagal positions, the learned counsel for the respondents relied on the decisions in Dal Chand v. Babu Ram (AIR 1981 Allahabad 335), Nagubai v. B. Sama Rao (AIR 1956 SC 593). Narayanaswami v. Ramakrishna (AIR 1965 SC 289), Achuthan Nair v. Chinnammu Amma (AIR 1966 SC 411), Kyi Oh v. Ma Thet Pon (AIR 1926 PC 29), Madangopal v. Mamraj ((1977) 1 SCC 669 : AIR 1976 SC 461), Manjushri v. B.L Gupta ((1977) 2 SCC 174 : AIR 1977 SC 1158) and Kedar Lal v. Hari Lal (AIR 1952 SC 47). None of these decisions said anything that will go against the principles discussed in the previous paragraph. Dal Chand's case (AIR 1981 Allahabad 335) was dealing with a plea of benami in relation to the joint family acquisition in the name of a junior member. It said that the analogy of benami transaction between strangers is not applicable in the case of coparceners where all persons are entitled as joint owners of the whole property. Nagubai's case (AIR 1956 SC 593) affirmed he position that evidence without pleadings and issues cannot be the condition for a decision of another and different issue. In that case hough lis pendens was not pleaded and no issue was raised, both sides went to trial with full knowledge that lis pendens was in issue and they bad ample opportunities to let in evidence in that respect. In such a situation. Their Lordships said that absence of pleadings was only an irregularity which resulted no prejudice. In Narayanaswami's case (AIR 1965 SC 289) and Achuthan Mair's cass (AIR 1966 SC 411) parties were actually in dispute as to whether question in the names of junior members were with joint family nucleus. That decisions only said that a just claim cannot be thrown out on technicalities of pleadings. Ryi Oh's case (AIR 1926 PC 29) has only laid down that on count of some reasons cases coming from Burma, unlike cases in England, should be given some laxity in the matter of strictness of pleadings. What Kedar Lal's case (AIR 1952 SC 47) said was only that a court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused. In Manjushri's case ((1977) 2 SCC 174 : AIR 1977 SC 1158) while dealing with a plea of negligence in an award of compensation for death involving poor illiterate people it was found that the pleadings will have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. Law laid down in Madangopal's case ((1977) 1 SCC 669 : AIR 1976 SC 461) was only that when pleadings are loosely drafted in the courts, the courts should not scrutinise them with such meticulous care so as to result in genuine cases being defeated on trivial grounds.

10. Every rule must have its exception for the purpose of doing justice in genuine and deserving cases. That is all what these decisions said and held. The decisions have not any in way deviated from thenormal rule that parties are bound by pleadings and no party should be taken by surprise by a new contention coming like a bolt from the blue at the time of arguments What the decisions said is only that in individual cases, depending upon the facts and circumstances and the need to do justice between the parties, the rigour of the rule could be brought down when no prejudice is occasioned. In this case joint family acquisition or joint family funds was far from contemplation of the parties. The argument on that basis was a surprise which the appellant had no occasion to meet. Plea of benami is one thing and the plea of joint family acquisition is an entirely different thing. Both the courts below lost sight of this fact. Otherwise on the pleadings and evidence the plaintiffs could only have been non-suited.

11. Joint family acquisition is not so nothing arising out of the pleadings in this case. There is no presumption of law that an acquisition in the name of a junior member of a joint family is with joint family nucleus or for the benefit of the joint family. A junior member having interest in the joint family properties is not barred by any provision from acquiring and owning of separate properties. If such properties are claimed as joint family properties, it must be so alleged. It will have to be stated that the acquisition was with joint family nucleus or at least that joint family nucleus was available for the acquisition. Only when the initial burden in that respect is discharged by an allegation and evidence, the presumption arises and the junior member becomes burdened with liability of disproving it by showing that he had separate funds with which alone the acquisition was made for his benefit. Without such allegation and evidence, the presumption is in favour of the junior member that the property belongs to him (Krishnan v. Narayana Iyer (1985 KLT S.N 42 Case No. 68). Even if the junior member is proved to have separate funds a presumption in favour of joint family acquisition could be had if it is alleged and proved that joint family nucleus was available with him for the acquisition. Here there is no such case and evidence. Plaintiffs thought of joint family acquisition only at the time of arguments. Such a case cannot be countenanced.

12. Though Ext. A4 was putforward as a partition deed, both the courts rejected that plea and in my opinion rightly. But it was accepted as a family arrangement. First of all in order to enter such a finding also, there must be a plea. The further ground on which the defence of the appellant was rejected was estoppelon his part by acceptance of Ext. A4. Both these grounds cannot prevail even if it is conceded for the sake of argument that the plaint schedule property is joint family property. Ext. A4 is ??? then a partition nor a settlement deed. It cannot be a family arrange no also. It is only in the nature of a testamentary disposition. Harihara Iyer assumed himself to be the absolute owner or all the properties. It is a unilateral, document. It was not intended to take effect in present. He reserved the right even for cancellation of the document and making fresh arrangements. Even after his death his widow was directed to be in possession. The right intended to be created after his death was also not only subject to the life estate of his widow but also subject to her authority of executing conveyance. No father is entitled to make such provisions regarding joint family properties. It is said that Ext. A4 was executed in consultation with the sons. But the document and other evidence show otherwise. In fact the appellant gave clear evidence that he not only did not agree but opposed the inclusion of the plaint schedule property on account of his separate right. That contention seems to be correct also.

13. It is true that though a will executed by a Hindu father in respect of joint family properties is inoperative as a will, in some cases it could operate as a valid family arrangement. But in such cases the essential requirements are (1) there must be agreement among the various members intended generally and reasonably for the benefit of the family, (2) the agreement must be with the object of compromising doubt full or disputed claims or rights for preserving the family property or for purchasing peace and security of the family by avoiding litigation or saving its honour and (3) there is consideration which could be the expectation that the arrangement will result in establishing or ensuring amity or good-will among the relations. It must be an arrangement that comes into existence in presente. But a document like Ext. A4 charting out a course for future devolution of properties claimed to be testator's own, cannot be treated as a family arrangement. Joint family properties cannot be devised by the Manager by a will. The reason is that the will takes effect only on the death of the testator at which time even regarding his share succession is only by survivorship Partition also cannot be by a will except with the consent of the other members. Father has no right to impose his unilateral family arrangement under the guise of exercising the right of partition. Father cannot deal with the joint family property at his sweet will to be operative after his death and that too with further conditions (Kalyani v. Narayanan (1980 Supp SCC 298 : AIR 1980 SC 1173), AIR 1970 SC 1799 and M.N Aryamoorthi v. M.L Subbaraya ((1972) 4 SCC 1 : AIR 1972 SC 1279). Tak Bahadur Debi Singh (AIR 1966 SC 292) relied on by the respondents did not lay down anything to the contrary. Judged by these decisions Ext. A4 cannot be a family arrangement. It cannot be a partition. Asa will it is incompetent also. The agreement on the basis of Ram Laxam Sugar Mills v. Commr. of Inc. Tax (66 ITR 613) that the approach of the court must be with the view of validating Ext. A4 cannot be countenanced at all for the simple reason that validity must mainly depend upon competency and existence of the rights claimed.

14. I have earlier stated that the courts below rejected the contention of the appellant on the basis of the operation of the rule of estoppel. The courts below on the bases of Exts. A5 to A8 proceeded on the assumption that Ext. A4 was accepted and acted upon by the appellant and therefore he is precluded from contending to the contrary. In the first place, there is no such admission or acceptance of Ext A4 by these documents. I have already referred to the prior and subsequent conduct of the appellant. The property covered by Exts. A5 and A6 was purchased in the name of Harihara Iyer. In Ext. A4 it was allotted to Harihara Iyer and the appellant in equal halves. I have earlier stated that the case of the appellant is that the inclusion of this property in Ext A4 was also objected to by him. The reason is that in spite of the acquisition in the name of the father he claimed to be his property. His case is that the purchase was made by him from a client and therefore on account of the difficulty in taking the sale deed in his name it was taken in the name of the father as a benamidar. He has produced some items of evidence also to substantiate this contention. Whether it is a benami transaction or not is not a matter to be decided in this case. Any how it cannot be said that it is a contention without any basis. Even before Ext. A4 the appellant joined the father in mortgaging this property. That is evident from Ext. A6. From the mortgagee the appellant alone took back the property on lease. If the father alone was the owner there is no reason why the appellant was also made to join the mortgage executed before Ext. A4 if he had nothing to do with the property. By execution of Ext. A5 by the father Ext. A4 was cancelled to the extent of this property. I fail to understand how the attestation of the appellant in such a document will amount to acceptance of Ext. A4 when in fact Ext. A5 only cancelled that document to the limited extent mentioned above. The fact that, the appellant joined the father in executing Ext. A6 sale of that property and sharing the consideration also cannot amount to acceptance of Ext. A4 in other respects. This is more so because even after Ext. A6 the appellant was continuing his independent claim at least up to 1971 as evidenced by the documents including Ext. B11.

15. Ext. A7 only proves the fact that in his capacity as an advocate the appellant was helping one of the relations to claim the rights under Ext. A4 regarding a property over which he had no claim. As Dw. 1 the appellant said that he had no objection to any other property being dealt with by the father in Ext-A4 because he was not concerned. Ext. A8 only shows that by orders of court he was compelled to include one item covered by Ext. A1 in the debt relief petition filed by him. That will not prove any admission or acceptance. So far as the plaint schedule property is concerned, he made it clear to all concerned that he is not accepting Ext. A4 and he continued to assert his independent title and possession. Even the mother's claim was strongly opposed by him as seen from Ext. B11. There is absolutely no question of anybody being misled by the conduct of the appellant.

16. Estoppel which is only a rule of evidence is more often misunderstood as in this case and interpreted in a lose manner to operate against anything said or did. The rule of estoppel embodied in S. 115 of the Evidence Act only prevents one party from denying the existence of fact which he represented as existing and upon which representation another person has been induced to act to his detriment. The moment the representation intentionally made was acted upon by the person to whom it was made to change his position to his detriment the first party cannot be allowed to go back on the representation so made. An estoppel is where a man is concluded by his own act or acceptance to say the truth. If a man either in express terms or by conduct makes a representation to another of the existence of certain state of facts intentionally by word, deed or omission which he intends to be acted upon in a certain way, and it is acted upon in the belief of the existence of such state of facts, to the disadvantage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. In other words the principle of estoppel will be attracted only if there was an intentional representation or promise or assurance on the part of a party and his opponent had acted upon the same to his detriment because no one could be allowed to take advantage of his intentional actions which prejudiced another. A mistaken representation or action could be allowed to be corrected. Intentional representation, action on its basis and altering position to the disadvantage are essential requirements. The rule does not go to the extent of tying down a party in all circumstances to his word, deed or omission even where it is by way of mistake or even in cases where the opponent was not misled or prejudiced. In spite of the representation if the opponent was aware of the truth, the rule has no application at all because he is not likely to be misled. In cases where the representation-does not operate as estoppel, but is found to bind him, its effect could only be as a previous statement or an admission or a conduct binding on him. Estoppel rests on the principle that it is unjust and inequitable to allow a person to repudiate his representation which prejudicially affected another.

17. Though estoppel is only a rule of evidence, it may have in some cases the effect of creating substantive rights or defeating rights as against the person estopped. In such cases it is not merely a rule of evidence but a rule creating or defeating rights. But normally admission, acquiescence or estoppel will not operate to convey title. Estoppel as a source of title could only be under S. 43 of the Transfer of Property Act. A party taking benefit under a transaction with another cannot be heard to assert subsequently that the transaction was ineffective or void to the prejudice of the other as held in Pattamali v. Lekshmi (1962 KLT 243) because of the operation of the principle embodied in S. 43 of the Transfer of Property Act. Estoppel operating to create title on the principle of estoppel feeding the grant is only in cases where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and profess is to transfer such property for consideration. In such cases, at the option of the transferee, the transfer shall by the operation of the rule of estoppel, operate on any interest which the transferor may acquire in the property at any time during which the contract of transfer subsists. In such a contingency even though he had no right at the time of transfer the subsequent acquisition will feed the deficiency and he will not be allowed on the principle of estoppel to plead that fact and the benefit of the subsequent acquisition will go to the advantage of the transferee. In other cases estoppel only prevents the maker from denying what he said or did and rights could flow only as a legitimate result or effect of the representation, action or promise.

18. None of these things are involved in this case. Ext. A6 cannot in any way operate as estoppel against claiming title to the suit property under Ext. A3 on account of Ext. A4. On the principle laid down in Maddanappa v. Chandramma (AIR 1965 SC 1812) the attestation in Ext. A5 also cannot operate as estoppel in claiming the suit property. PW1 and plaintiffs are persons ware of the rights of the appellant under Ext. A3 and absence of title of the father to execute Ext. A4. They were also aware of the claims made by the appellant to the suit property all along in spite of Ext. A4 and his continuous possession and exercise of rights if at all their is any question of estoppel it will not operate to create title to maintain the suit. S. 43 of the Transfer of Property Act is in no way attracted.

19. In cases of tangible immovable properties of the value of Rs. 100/- a or more and reversions or other intangible immovable properties of even lesser value, title could be acquired only by a transfer evidenced by a registered document except in cases of involuntary transfers. Title of the appellant under Ext. A3 could not have passed to Harihara Iyer since no valid method of transfer is alleged or proved. Contentions of benami and joint family are out of question. Ext. A4, at least regarding the suit property, was incompetent and incapable of conveying title because nobody could convey a title which he did not have. The title or possession of the appellant was not in any way affected by anything that transpired so far. Both the courts below went wrong in decreeing the suit. While dismissing S.A 335 of 1982 without costs, S.A 284 of 1983 is allowed and in reversal of the decrees and judgments of the courts below the suit is dismissed with costs to the appellant in all the three courts.

20. After arguments for three days was over and the case taken up for disposal the respondents moved an application for amendment of plaint to plead that Ext. A3 is a joint family acquisition. The prayer was opposed. I am satisfied that the prayer is mala fide and it is not necessary for deciding the real question in controversy between the parties. That is a case ruled out by Ext. A4, the pleadings as well as evidence and it will take away right to plead limitation also. The application is therefore rejected.