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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.521-522 OF 2023

(Arising out of SLP(C)Nos.14948-14949 of 2017)

ELUMALAI @ VENKATESAN & ANR …APPELLANT (S)

VERSUS

M. KAMALA AND ORS. & ETC. …RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. One Shri Sengalani Chettiar was married to one

Rukmini. The said marriage produced a son, namely, Shri

Chandran. The appellants are the sons of Shri Chandran.

Sengalani Chettiar married again this time with one

Smt. Kuppammal. From the second marriage Sengalani

Chettiar had 5 daughters and a son. The controversy in

this case relates to A-Schedule property in the suit

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for partition filed by two children out of the 6

children born to Sengelani Chettiar from his second

marriage. The property in dispute was the self -acquired

property of Shri Sengalani Chettiar. In regard to the

said property, Chandran ,the father of the appellants

had executed a Release Deed. The terms of the Release

Deed dated 12.11.1975, are as follows:

THIS DEED OF RELEASE is executed on the 12th

day of November, 1975 in favour of 1.

C.Sengalani Chettiar, son of Singara Chettiar,

residing at No.144, Venkatachala Mudali Street

Meersapet, Mylapore, Chennai, 2. Sengalani

Chettiar, as the guardian of his minor son,

Vinayagarnurthy, aged about 2 years, this deed

executed by S.Chandran, son of Sengalani

Chettiar, residing at No.19, Santha Sahib

Street, Meersapet, Mylapore, Chennai is as

follows:

I am the son of your first wife. As I could

not be with you, I had received through the

transfer of mortgage gold jewellery which is

worth of Rs. 10,000/ - and the materials of a

value of Rs.5000 /- and releasing my share in

respect of the house sites situate at Manamathi

Village, which belong to us and more

particularly described in the schedule

hereunder, through this document on this day.

The mortgage amount of Rs.10,500 / - as against

the above said house site, shall be settled by

you. Hereafter we do not have any other

connection except blood relation.

In this manner I had execute this Deed of

Release.

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3. As destiny would have it, Shri Chandran passed away

on 09.12.1978. Sengalani Chettiar died on 19.01.1988.

The second wife of Sengalani Chettiar, Smt. Kuppammal

breathed her last on 25.08.2005. O.S. No.8173 of 2006

came to be filed by one Uma Ravi Chandran and Vinayaga

Murthy, who were, as already noticed , children of

Sengalani Chettiar from his second marriage.

Defendants 1 to 3 were the other daughters of Sengalani

Chettiar from the second marriage. The appellants were

subsequently impleaded as defendants 4 and 5.

Defendant No.6 came to be impleaded as such and he is

the son of the deceased daughter of Sengalani Chettiar

from the second marriage.

4. The case of the plaintiffs to exclude the

appellants was based on the Release Deed executed by

the father of the appellants. The trial Court however

found that the Release Deed in question was a void

document for the reason that Chandran executed the

Release Deed in 19 75 while his father Sengalani

Chettiar was alive. It is found that the Release Deed

would not be a bar for the appellants to inherit the

property of their grandfather Sengalani Chettiar. The

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plaintiffs were only found to be eligible to get only

2/7 share. Plaintiffs were accordingly given a decree

of 2/7 share inter alia. The suit came to be dismissed

as far as ‘B’schedule property is conc erned.

Plaintiffs filed AS No.883 OF 2009. Defendants 1, 3 and

6 filed appeal AS No.718 of 2009. By the impugned

judgment the High court has allowed these appeals and

found that the appellants were not entitled to claim

any share in the property of the de ceased Sengalani

Chettiar. The foundational premise for overturning the

decree of the trial court was furnished by the dicta

laid down by this court in Gulam Abbas v. Haji Kayyam

Ali and others

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. Briefly put , the premise is that

insofar as Shri Chandran executed a deed of Release

having obtained consideration from his father, the

appellants would stand estopped from laying a claim to

a share in A-Schedule property. The court also notic ed

the death of the second pla intiff and found that the

first plaintiff and her siblings namely , defendants 1

to 3 alone would entitled to succeed to the share of

second plaintiff. In other words , after finding that

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AIR 1973 SC 554

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the plaintiffs D1 to D3 and D6 would be entitled to

one-sixth share each in A-Schedule property and in view

of the death of the second p laintiff, the first

plaintiff and defendants 1 to 3 were found to get 5/24

share and the 6

th

defendant was to get 4/24 share. It

is feeling aggrieved by the denial of share in A-

schedule property that the defendants 4 and 5 are

before this Court.

5. Heard Shri Sidharth Iyer, learned counsel for the

appellants, Shri Umashankar, learned counsel on behalf

of the first plaintiff and Shri Jayanth Muth Raj,

learned senior counsel on behalf of defendant no s. 2

and 6.

6. Shri Sidharth Iyer, learned counsel for the

appellants would contend that the High Court erred in

drawing support from Gulam A bbas (supra). He would

point out that the case arose under Mohammadan Law and

the principle laid down in the said judgment could not

be employed to deprive the appellants of their share

as Class-I heirs under Section 8 of the Hindu

Succession Act, 1956. He would , in fact, point out that

the first appellant was hardly three years old in 1975

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when the Release Deed was executed . What is even more

noteworthy is that the second appellant was not even

born. The property being the sep arate property of the

grandfather of the appellants and the appellants being

the sons of the pre-deceased son of Sengalani Chettiar,

under Section 8, the law vouchsafed shares to the

appellants. Reference is made to Section 6 of the

Transfer of Property Act. He point s out that in 1975

when the Release Deed was executed , Shri Chandran, the

father of the appellant , had a mere spes successionis.

The mere expectation of succeeding in fut ure could

not form the subject matter of a legitimate transfer.

Therefore, the trial court is entirely right in

ignoring the Release Deed as a null and void document.

In other words, when succession to the estate of

Sengalani Chettiar opened in the year 1988, the

property in question stood in the name of Sengalani

Chettiar and in terms of Section 8, the appel lants’

right to succeed to a legitimate share cannot be

questioned on the basis of the Release Deed. He would

also point out that the High court has overlooked the

mandate of Section 8 of the Hindu Minor ity and

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Guardianship Act, 1956. It is contended that Shri

Chandran, the father of the appellant s could perhaps

be treated as having entered into a covenant with his

father. The covenant , however, could not operate to

bind the appellant s in view of Section 8. He would

further submit that nothing prevented the grandfather

of the appellants from executing a Will or otherwise

dealing with the property. He was conscious of the

consequence of Shri Chandran dying intestate but yet

he did not make any safeguard known to law to eliminate

the appellants from succeeding to the property. Based

on the dates of the death of their father Shri Chandran

in 1978 and the grandfather in 1988, it is contended

that there is no scope for applying the doctrine o f

feeding the grant within the meaning of Section 43 of

Transfer of Property Act.

7. Shri Jayanth Muth Raj, learned Senior Counsel

appeared to support the appellant s. He concedes that

the support for the appellant s is a later development.

In other words, originally, the clients of Shri Jayanth

Muth Raj, one of whom is one of the daughters of

Sengalani Chettiar and the other Shri Babu, the Sixth

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defendant (the son of a pre-deceased daughter of

Sengalani Chettiar ) had contested the claim of the

appellants. It would however appear that there has been

a subsequent assignment in regard to the share of the

appellants, made in favour of the client s of Shri

Jayanth Muth Raj. This explains, apparently, the

somersault and inevitable change in the stand of his

clients. Shri Jayanth Muth Raj would contend that the

judgment of this court in Gulab Abbas (supra) relied

upon by the High Court involved facts based on which

the principle of estoppel was applied . The facts of the

instant case, however, did not warrant the principle

of estoppel. He would contend that in the case of Gulam

Abbas, the conduct of the co -heirs was taken into

consideration by this Court to hold that they are

estopped. On the other hand , in this case he would

contend that there was a stark contrast. There is no

conduct attributed to the appellants. The children of

Sengalani Chettiar have not made out a case based on

the principle of estoppel on the basis of conduct by

the co-heirs as was the position in the case in Gulam

Abbas (supra). No doubt, in regard to the question as

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to whether if estoppel did apply qua Shri Chandran , it

could be invoked against the appellants to deprive them

of their right as Class I heirs (being children of pre -

deceased son), the learned Senior Counsel would proceed

on the basis that the property involved was a separate

property of Sengalani Chettiar . He would fervently

contend that the principle in Gulam Abbas (supra) was

wrongly applied by the High Court. Shri Jayanth Muth

Raj would contend that this court may notice that the

grandfather did not deal with the property and it did

show that he wanted the succession to the property to

take place in accordance wit h the mandate of Section 8

of the Succession Act.

8. Per contra, Shri Umashankar, learned counsel

appearing on behalf of first plaintiff and the other

contesting respondents support the judgment of the High

Court. Learned counsel drew our attention to the ter ms

of the Release deed. He pointed out that the court

should bear in mind the intention of the parties. In

the second marriage Sengalani Chettiar had a son. He

was not mentally well . Parties wanted to protect the

interest of the son. This explained why the Release

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Deed is executed in favour of the son represented by

grandfather of the appellant s. This is apart from

pointing out that Shri Chandran having received

consideration and given up all his rights, it would not

lie in the mouth of the appellant s to stake a claim for

succession to the property.

ANALYSIS

9. The property in question has been found to be the

separate property of Sengalani Chettiar . He died in

1988. Sengalani Chettiar had married twice. From his

first marriage, was born Shri Chandran. Shri Chandran

pre-deceased his father in the year 1978. Being the

children of the pre-deceased son, the appellant s would

ordinarily have inherited the share as decreed by the

trial court in this case. The terms of the Release Deed

recites that Shri Chandran has released his share in

respect of the property. It is also clear that the

Relinquishment made by Shri Chandran was based on his

having received valuable consideration. Shri Jayanth

Muth Raj, learned Senior Counsel made an attempt to

contend that the Release Deed is about the property

belonging to “us”. Nothing turns on the same and we are

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inclined to proceed on the basis of the finding

rendered by both the court s that the property was the

self-acquired property of Shri Sengalani Chettiar.

10. Section 6 of the T ransfer of Property Act

enumerates property which can be transferred. It

declares that property of any kind may be transferred

except as otherwise provided by the Transfer of

Property Act or by any other law for the time being in

force. Section 6(a) declares that a chance of an heir

apparent succeeding to an estate, the chance of a

relation obtaining a legacy on the death of a kins man

or other mere possibility of a like nature cannot be

transferred. A living man has no heir. Equally, a

person who may become the heir and entitled to succeed

under the law upon the death of his relative would not

have any right until succession to the estate is opened

up. When Shri Sengalani Chettair, the father of Shri

Chandran, was alive, Shri Chandran his son had at best

a spes successonis. Unlike a co-parcener who acquires

right to joint family property by his mere birth , in

regard to the separate property of the Hindu, no such

right exists. Thus, there can be no doubt that the

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Release Deed may not by itself have the effect of a

transfer of the rights of Shri Chandran in favour of

either his father or the minor son of his father from

the second marriage.

11. What however remains to be seen is whether conduct

of Shri Chandran in executing the release deed and what

is even more important receiving consideration for

executing the Release Deed would result in the creation

of estoppel. Having regard to the equity of the matter,

in short, whether it is a case where the doctrine of

equitable estoppel would have prevented Shri Chandran

from staking a claim if he had survived his father.

What is the effect of the existence of estoppel as

against Shri Chandran if such estoppel is made out, as

far as the claim of the appellant s is concerned? The

further question would be what is the effect of Section

8 of Hindu Minority and Guardianship Act .

12. Before we proceed to deal with the contention s, it

is necessary to take a closer look at the facts of the

case of Gulam Abbas (supra) and what has been laid down

therein. In the said case the facts involved were as

follows:

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In that case, a Mohammadan died leaving behind 5

sons, a daughter and a widow as his heirs. Three of his

sons did well in life. Their father had incurred de bts.

At the time, when their father was staring at the

prospect of being completely deprived of the pro perty

as a result of his indebtedness, two of his sons came

forward and they paid up the debt. It came with the

price however. Two of his sons, namely the plaintiff

and the fourth defendant in the deeds acknowledged

receipt of some cash and movable propert y as

consideration for not claiming any rights in future in

the property. The words relevant in this regard are as

follows:

“I have accordingly taken the things mentioned

above as the equivalent of my share and I have

out of free Will written this. I ha ve no claim

in the properties hereafter and if I put up a

claim in future to any of the properties I

shall be proved false by this document. I shall

have no objection to my father giving any of

the properties to my other brothers......

.....”

13. This court went on to approve the view taken by

the High Court of Allahab ad in AIR 1976 Allahabad 573.

The court found as follows:

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“…With due respect, we are unable to concur

with the view of the Madras High Court that a

renunciation of an expectancy, as a purported

but legally ineffective transfer, is struck by

Section 23 of the Indian Contract Act. As it

would be void as a transfer at all there was

no need to rely on Section 23, Contract Act.

If there was no “transfer” of property at all,

which was the correct position, but a simple

contract, which could only operate in future,

it was certainly not intended to bring about

an immediate transfer which was all that the

rule of Muslim law invalidated. The real

question was whether, quite apart from any

transfer or contract, the declarations in the

deeds of purported relinquishment and receipt

of valuable consideration could not be parts

of a course at conduct over a number of years

which, taken as a whole, created a bar against

a successful assertion of a right to property

when that right actually came into being. An

equitable estoppel operates, if its elements

are established, as a rule of evidence

preventing the assertion of rights which may

otherwise exist.

7. Sir Roland Wilson, in his “ Anglo Mohamadan

Law” (p. 260, para 208) states the position

thus:

“For the sake of those readers who are familiar

with the joint ownership of father and son

according to the most widely prevelant school

of Hindu Law, it is perhaps desirable to state

explicitly that in Mohammedan, as in Roman and

English Law, nemo est heres viventis.........a

living person has no heir. An heir apparent or

presumptive has no such reversionary interest

as would enable him to object to any sale or

gift made by the owner in possession; See Abdul

Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885)

which was followed in Hasan Ali, 11 All 456,

(1889). The converse is also tru e: a

renunciation by an exepectant heir in the

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lifetime of his ancestor is not valid, or

enforceable against him after the vesting of

the inheritance.”

This is a correct statement, so far as it goes,

of the law, because a bare renunciation of

expectation to inherit cannot bind the

expectant heir's conduct in future. But, if the

expectant heir goes further and receives

consideration and so conducts himself as to

mislead an owner into not making dispositions

of his property inter vivos the expectant heir

could be debarred from setting up his right

when it does unquestionably vest in him. In

other words, the principle of estoppel remains

untouched by this statement. ”

(Emphasis supplied)

14. The property, i.e., ‘A’ schedule, was not the

ancestral property of Shri Chandran. Shri Chandran

would have acquired rights over the same only if his

father had died intestate. He was, thus, only a heir

apparent. Transfer by an heir apparent being mere spes

successonis is ineffective to convey any right. By the

mere execution of Release Deed, in other words, in the

facts of this case, no transfer took place. This is for

the simple reason that the transferor, namely, the

father of the appellant s did not have any right at all

which he could transfer or relinquish. However, if his

conduct was such that he could be estopped then the

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execution of the Release Deed would imperil his right

and therefore cast an irremovable shadow on the claim

of the appellants as well unless we find merit in other

submissions of Shri Siddharth Iyer, learned counsel for

the appellants.

15. The argument of the appellant s and Shri Jayanth

Muth Raj that there is no evidence that the grandfather

of the appellant acted on the Re lease Deed and that he

did not execute any deed on the basis of the Release

Deed does not appeal to us. Shri Sengalani Chettiar

married twice. The first union produced the father of

the appellants. Thereafter, he married again. It is

after the second marriage and the birth of the children

from the said wedlock that Release Deed came to be

executed on 12

th

November, 1975. It would appear that

from the second marriage , a son was born who

incidentally was ill and in whose favour the father of

the appellants executed the Release Deed. The intention

of Sengalani Chettiar would appear to have been to

secure the interest of the son from the second

marriage. He wished to secure his interest created

under the second marriage and for which the father of

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the appellants who was his son from the first marriage

was given some valuable consideration , which persuaded

Shri Chandran to release all his rights in respect of

property in question. The words in the ‘Release Deed’

that hereafter he did not have any othe r connection

except blood relation appears to signify that the

intention of Shri Ch ettiar was to deny any claim to

Shri Chandran in regard to the property. He apparently

thought that he achieved his goal and in law if the

principle in Gulam Abbas (supra) is applied and Shri

Chandran did not pre-decease his father, all would have

gone according to the plan of the parties.

16. We are of the view that conjecturing that Shri

Chandran has survived his father and his succession ha d

opened intestate in rega rd to the estate of his father,

the conduct of executing the Release Deed though by

itself may not have resulted in a lawful transfer, his

conduct being accompanied by the receipt of

consideration would have estopped Shri Chandran. The

very fact that Shri Chettiar did not execute any

document by way of Will only shows that he proceeded

on the basis that the branch represented by Shri

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Chandran was being cut off from inheritance from the

property in question.

17. When we queried learned counsel for the plaintiff

as to why no Release Deed was got executed from the

children of Shri Chandran, viz., the appellant s,

learned Counsel responded by contending that Sengalani

Chettiar, apparently, proceeded on his understanding

of the law.

THE IMPACT OF SECTION 8 OF THE HINDU MINORITY AND

GUARDIANSHIP ACT

18. Section 8 (1), (2) and (3) of the Hindu Minority

and Guardianship Act, 1956 (hereinafter referred to as,

‘the 1956 Act’), inter alia, reads as follows:

“8. Powers of natural guardian. —

(1) The natural guardian of a Hindu minor has

power, subject to the provisions of this

section, to do all acts which are necessary or

reasonable and proper for the benefi t of the

minor or for the realisation, protection or

benefit of the minor’s estate; but the guardian

can in no case bind the minor by a personal

covenant.

(2) The natural guardian shall not, without the

previous permission of the court, —

(a) mortgage or charge, or transfer by sale,

gift, exchange or otherwise, any part of the

immovable property of the minor; or

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(b) lease any part of such property for a term

exceeding five years or for a term extending

more than one year beyond the date on which

the minor will attain majority.

(3) Any disposal of immovable property by a

natural guardian, in contravention of sub -

section (1) or sub-section (2), is voidable at

the instance of the minor or by any person

claiming under him.”

19. The appellants rely upon the prohibition against

the natural guardian of a Hindu minor, binding the

minor by a personal covenant. In view of the said

embargo, the principle enunciated in Gulam Abaas

(supra) would not apply it is contended. We would think

that it is a contention, which may not pass muster on

a proper interpretation of Section 8.

20. Section 6 of the 1956 Act, inter alia, declares

that the father and, after him, the mother, shall, in

the case of a boy or an unmarried girl, be the natural

guardians of the minor’s person as well as in respect

of the minor’s property. However, the minor’s property

would not include the undiv ided interest the minor has

in the joint family property. It is, thereafter, that

Section 8 appears and it purports to delineate the

powers of a natural guardian. The powers of a natural

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guardian, in other words, relate either to the person

or to the minor’s property or both. Section 8 purports

to, inter alia, provide that the natural guardian would

have the power to do all acts, which are necessary or

reasonable and proper for the benefit of the minor or

realisation, protection or benefit of the minor’s

estate. It is, thereafter, that the Law -Giver has

interdicted the guardian from binding the minor by a

personal covenant. In short, in order that we pour

meaning into the word s in question, the backdrop must

be provided by the existence of the minor and who has

a right to some property. If, in regard to the property

of the minor, the natural guardian s were to enter into

a covenant, then, it may be open to the minor to invoke

the prohibition against the natural guardian, binding

the minor by a personal covenant.

21. In the facts of this case, the case of the

appellants may be noted. It is the ir case, that Shri

Chandran, their father, himself did not have any right

in the plaint schedule property. This is for the reason

that being the separate property of Shri Sengalani

Chettair, Shri Chandran did not have any right by

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birth. He himself had only, what is described a spec

successionis within the meaning of Section 6 (a) of the

Transfer of Property Act. It is not even the case of

the appellants that they had any independent right in

the plaint schedule property either at the time of

their birth or at the time when their father died or

even when their grandfather Shri Sengalani Chettair

died in 1988. The right, which they claim, at the

earliest point, can arise only by treating the property

as the separate property of Shri Sengalani Chettair on

his death within the meaning of Section 8 of the Hindu

Succession Act. Therefore, we are unable to discard the

deed of release executed by their father Shri Chandran

in the year 1975 as a covenant within the meaning of

Section 8 of the ‘1956 Act.’

22. As far as the argument of the appellant s that the

appellants would have an independent right, when

succession open to the estate of Shri Sengalani

Chettair, when he died in 1988, in view of the fact

that the appellants are the children of the predeceased

son, viz., Shri Chandran, who died on 09.12.1978, we

are of the view that there is no merit in the said

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contention. It is true that under Section 8(a) of the

Hindu Succession Act, 19 56, property of a male Hindu ,

dying intestate, will devolve , firstly, upon the heirs,

being the relatives specified in Class I of the

Schedule. The son of a predeceased son, it is true, is

a Class I heir. Therefore, it could be argued that

since Shri Sengalani Chettair died intestate, a right

was created in the property in favour of the

appellants, being the children of the predeceased son.

What estoppel brin gs about, however, is preventing a

party from setting up the right, which, but for the

estoppel, he would have in the property. In this

regard, we may notice the following discussion under

the caption ‘Death or disability of the representor’

(pages 125-126) in the work Estoppel by Representation

by Spencer Bower and Turner:

“Death or disability of the representor

128. In case of the death, or the total or

partial disability (whether by reason of

insolvency, infancy, lunacy, coverture, or

otherwise), of the representor at the time

of the proceedings in which the question of

estoppel is raised, the liability to the

estoppel, speaking generally, devolves

upon, or is transmitted to, the same

persons, in accordance with the same rules,

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and subject to the same conditions, as the

liability of such a representor to

proceedings for the avoidance of a contract

procured by the representation.

Where the representor has died between

the date of the representation and the date

of the raising of the estoppel, the

executor or administrator, or (in case of

title to, and estates in, land) the heir or

devise, of the deceased representor is

bound by the representation to the same

extent as the representor would have been,

and succeeds to all the burdens of estoppel

in respect thereof to which, at the date of

his decease, such representor was subject …”

23. It will be noticed that the father of the

appellants, by his conduct, being estopped, as found

by us, is the fountainhead or the source of the title

declared in Section 8(a) of the Hindu Succession Act .

It is, in other words, only based on the relationship

between Shri Chandran and t he appellants, that the

right under Section 8(a) of the Hindus Succession Act,

purports to vest the right in the appellants. We would

think, therefore, that appellants would also not be in

a position to claim immunity from the operation of the

Principle of Estoppel on the basis of Section 8(a) of

the Hindu Succession Act. If the principle in Gulam

Abbas (supra) applies, then, despite the fact that what

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was purported to be released by Shri Chandran, was a

mere spec successonis or expectatio n his conduct in

transferring/releasing his rights for valuable

consideration, would give rise to an estoppel. The

effect of the estoppel cannot be warded off by persons

claiming through the person whose conduct has generated

the estoppel. We also find no merit at all in the

attempt at drawing a distinction based on religion. The

principle of estoppel applies without such distinction.

24. The only further contention which remains to be

dealt with is that raised by Shri Jayanth Muth Raj,

learned Counsel. He made an attempt to contend that the

principle in Gulam Abbas (supra) may not be available

in view of the factual matrix. It is his case that in

the said case, the brothers received a benefit and

thereafter gave-up the rights, which, as it was found,

they did not possess at the time. The position in this

case, however, is not similar. We are of the view that

this argument ignores the play o f the facts. Having

received valuable consideration and allowed his father

Shri Sengalani Chettair to proceed on the basis that

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he was free to deal with the property without the

prospect of being haunted by any claim whatsoever as

regards the property by S hri Chandran, a clear estoppel

sprang into existence following the receipt of

consideration by Shri Chandran. Estoppel would shut

out in equity any claim otherwise either by Shri

Chandran or his children, viz., the appellants.

25. In such circumstances, we find no merit in the

appeals. The appeals will stand dismissed. Parties will

bear their own costs.

……………………………………………J.

[K.M. JOSEPH]

…………………………………………J.

[HRISHIKESH ROY]

NEW DELHI;

DATED: JANUARY 25, 2023.