2024:KER:86929

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SATHISH NINAN

&

THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN

WEDNESDAY, THE 20

TH

DAY OF NOVEMBER 2024 / 29TH KARTHIKA, 1946

RFA NO. 313 OF 2003 (B)

AGAINST THE JUDGMENT AND DECREE DATED 31.05.2003 IN OS NO.620

OF 1998 OF I ADDITIONAL SUB COURT,ERNAKULAM

-----

APPELLANT/PLAINTIFF NO.1:

1 P.J.JOHN,(DIED;LRs IMPLEADED) *

1

S/O VARU JOSEPH, PALAKKAPPILLY,NEAR OEN COMPANY,

THEKKUMBAGAM, TRIPUNITHURA.PO,ERNAKULAM.

*

1

ADDITIONAL APPELLANTS A2 TO A6

ADDL.A2PONNAMMA JOHN,

W/O LATE P.J.JOHN,PALAKKAPPILLIL HOUSE, THEKKUMBHAGAM,

MONIPILLY ROAD, TRIPUNITHURA P.O.

ADDL.A3JOSEPH JOHN,

S/O. LATE P.J.JOHN, PALAKAPILLIL, THEKUMBHAGAM,

PANACKAL ROAD, TRIPUNITHURA P.O.

ADDL.A4JACOB JOHN,

S/O. LATE P.J.JOHN, PALAKAPILLIL, PALACE AVENUE, COCHIN

PALACE P.O., HILL PALACE, TRIPUNITHURA P.O.

ADDL.A5JHONSON JOHN,

S/O LATE P.J.JOHN,PALAKAPPILLIL, THEKUMBHAGAM,

MONIPILLY ROAD,TRIPUNITHURA P.O.

ADDL.A6MAYMOLE MATHEW,

D/O LATE P.J.JOHN, VAZHATHARA HOUSE, UDAYAMPEROOR.PO

VAKOM ROAD,NADAKAVU.

C. R.

2024:KER:86929

RFA NO. 313 OF 2003 -2-

*

1

[LEGAL REPRESENTATIVES OF DECEASED APPELLANT ARE IMPLEADED AS

ADDL. A2 TO A6 AS PER ORDER DATED 01.04.2014 IN IA 415/2008]

BY ADVS.

A.R.DILEEP

GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

KAVITHA GANGADHARAN

RESPONDENT/DEFENDANTS 1 TO 10 AND PLAINTIFF NO.2:

1 P.J.GEORGE,(DIED; LRs RECORDED) *

3

S/O VARU JOSEPH, PALAKKAPPILLIL HOUSE, KESAVAN PADI,

THIRUVANKULAM, ERNAKULAM DISTRICT.

*

3

[IT IS RECORDED THAT R1 DIED AND THAT THE APPELLANTS ARE

EXEMPTED FROM IMPLEADING LEGAL REPRESENTATIVES OF DECEASED R1 AS

PER ORDER DATED 01/04/2014 IN IA 1714/2013]

2 P.J.JOSEPH,

S/O VARU JOSEPH, PALAKKAPPILLY HOUSE, OPP. ST LURD

CHURCH, PERUMANOOR,ERNAKULAM DISTRICT, KOCHI-15.

3 CDR.JOSEPH MATHEW,

S/O VARU JOSEPH, PALAKKAPPILLIL HOUSE, 1/2 A SYDNEY

STREET,JAKAPUNA,AUCKLAND 1309,NEWSEALAND.

4 P.J TOMY, (DIED;LRS IMPLEADED) *

5

S/O VARU JOSEPH, PALATHINGAL APARTMENTS, CANAL CROSS

ROAD, PERUMANOOR,ERNAKULAM DISTRICT,KOCHI-15.

5 JOSEPH XAVIER PALAKKAPPILLIL(INSANE) (DIED;LRS IMPLEADED) *

2

PLAKKAPPILLIL HOUSE,POPE PAUL MERCY HOME,SANTHIVANAM,

ASHA NILAYAM,PERIINGADOOR,THRISSUR DISTRICT,

REPRESENTED BY GUARDIAN FR.VARGHESE PALATHINKAL, POPE

PAUL MERCY HOME,SANTHIVANAM,ASHA NILAYAM,

PERINGADOOR,THRISSUR DIST.

*

2

[IT IS RECORDED THAT R5 PASSED AWAY AND THAT APPELLANT (DIED)

AND R3, R4, R6, R7 & R11 (ALREADY IN PARTY ARRAY) ARE THE LEGAL

REPRESENTATIVES OF DECEASED R5, AS PER ORDER DATED 01/04/2014 IN

MEMO DATED 15/07/2013 (VIDE CF NO.3924/2013)

6 KIRAN G.,ARORA @ MARIAMMA,

D/O. VARU JOSEPH, A-602/4 MILTONS APARTMENTS, JUHU AZAD

ROAD, BOMBAY - 400049.

2024:KER:86929

RFA NO. 313 OF 2003 -3-

7 ANU BABU,

D/O. VARU JOSEPH, VAGAPPALLY HOUSE, KOCHUPALLY ROAD,

THOPPUMPADY, ERNAKULAM DISTRICT,KOCHI-5.

8 K.A. KUTTY MOOSA,

PANDAREKOTTIL HOUSE, ERAMALLOOR, CHERTHALA TALUK.

9 MRS. CICILY MAMMEN, (DIED;LRS IMPLEADED) *

4

PUTHENPURAYIL HOUSE, H.NO.XXVIII/1786, AMALA BHAVAN

ROAD, KADAVANTHRA , KOCHI-682 020.

10 P.M.PAUL,

S/O VIJU PAUL, PALLATHITTAYIL HOUSE, H.NO.3631, MAKKAR

LANE, PERUMANNUR, KOCHI-682 015.

11 TRESAMMA GEORGE,

D/O. VARU JOSEPH, 113, PALLAVAN NAGAR, MADURAVOYAL,

CHENNAI-602 102.

*

4

ADDITIONAL R12 TO R16 IMPLEADED

ADDL. R12BEENA JOSE,

AGED 63 YEARS, W/O.K.C.JOSE, KALAPARAMBATHU,

KARUMALLOOR P.O., KARUMALLOOR-683511, ERNAKULAM

DISTRICT.

ADDL. R13NEENA JOB,

AGED 60 YEARS, W/O.JOB V POTTAYIL, POTTAS HOUSE,

S.MARADY P.O., MUVATTUPUZHA -686673.

ADDL. R14LEENA SOJU,

AGED 57 YEARS, W/O.SOJU JOSEPH PUNNOSE, KOZHUPPAKALAM

HOUSE, S.M.S NAGAR, VELLAYAMBALAM,

THIRUVANANTHAPURAM - 690 510.

ADDL. R15SHEENA JORDY,

AGED 52 YEARS, W/O M.A.JORDY, MANNATHUKKARAN HOUSE,

MUVATTUPUZHA P.O., MUVATTUPUZHA -686661.

ADDL. R16SONA P.MAMMEN,

AGED 50 YEARS, PUTHENPURAYIL HOUSE, H.NO.XXVIII/1786,

AMALA BHAVAN ROAD , KADAVANTHRA, KOCHI -682020.

*

4

[LEGAL HEIRS OF THE DECEASED R9 ARE IMPLEADED AS ADDL. R12 TO

R16, AS PER ORDER DATED 19.01.2024 IN IA NO.1/2023]

2024:KER:86929

RFA NO. 313 OF 2003 -4-

*

5

ADDITIONAL R17 TO R18

ADDL. R17ALICE TOMY, W/O LATE P.J.TOMY, PALATHINGAL APARTMENTS,

CANAL CROSS ROAD, PERUMANOOR, ERNAKULAM DISTRICT,

KOCHI-682015.

ADDL. R18MUNNU JOSE TOMY, S/O LATE P.J.TOMY, PALATHINGAL

APARTMENTS, CANAL CROSS ROAD, PERUMANOOR, ERNAKULAM

DISTRICT, KOCHI-682015.

*

5

[THE LEGAL REPRESENTATIVES OF THE DECEASED FOURTH RESPONDENT ARE

IMPLEADED AS ADDITIONAL RESPONDENTS R17 AND R18 AS PER ORDER DATED

24.09.2024 IN IA NO.1 OF 2024 IN RFA 313 OF 2003]

BY ADVS.

JACOB SEBASTIAN - R1

PRAVEEN K. JOY - R1

C. VARGHESE KURIAKOSE - R1

GEORGE A.CHERIAN – R4

LATHA SUSAN CHERIAN - R4

GEORGE CHERIAN (SR.) (G-81) - R4

ABRAHAM C I – R3 & R7

K.G.BALASUBRAMANIAN – R3 & R7

GEORGE KARITHANAM VARGHESE – R3 & R7

THOMAS P. KURUVILLA - R2

KESAVA KAIMAL – ADDL. R13

DEVIKA RANI KAIMAL – ADDL. R13

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

20.11.2024, ALONG WITH RFA.362/2003, THE COURT ON THE SAME DAY

DELIVERED THE FOLLOWING:

2024:KER:86929

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SATHISH NINAN

&

THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN

WEDNESDAY, THE 20

TH

DAY OF NOVEMBER 2024 / 29TH KARTHIKA, 1946

RFA NO. 362 OF 2003

AGAINST THE JUDGMENT AND DECREE DATED 31.05.2003 IN OS NO.620

OF 1998 OF I ADDITIONAL SUB COURT,ERNAKULAM

-----

APPELLANT/PLAINTIFF NO.2:

THRESSAMMA GEORGE, AGED 54, W/O GEORGE & D/O LATE VARU

JOSEPH, RESIDING AT 113, PALLAVAN NAGAR, MADURAVOYAL,

CHENNAI.

BY ADVS.

SRI.VARGHESE C.KURIAKOSE

SRI.JACOB SEBASTIAN

SRI.PRAVEEN K. JOY

SRI.M.A.RASHEED

RESPONDENTS/DEFENDANTS 1 TO 10 & PLAINTIFF NO.1:

1 P.J.GEORGE, [DIED; ADDL. RESPONDENTS 12 TO 15 IMPLEADED] *

1

S/O.VARU JOSEPH, PALAKKAPPILLIL HOUSE, KESAVAN PADI,

THIRUVAMKULAM, ERNAKULAM DIST.

2 P.J.JOSEPH

S/O.VARU JOSEPH, PALAKKAPPILLY HOUSE, OPP.ST.LURD

CHURCH, PERUMANOOR, ERNAKULAM DISTRICT, KOCHI-15.

3 CDR JOSEPH MATHEW

S/O.VARU JOSEPH, PALAKKAPPILLIL HOUSE, 1/2A SYDNEY

STREET, JAKAPUNA AUCKLAND 1309,NEWZELAND.

4 P.J.TOMY [DIED; LRs IMPLEADED] *

6

S/O.VARU JOSEPH, PALATHINGAL APARTMENTS, CANAL CROSS

ROAD, PERUMANOOR, ERNAKULAM DISTRICT, KOCHI-15.

C. R.

2024:KER:86929

RFA NO. 362 OF 2003 -2-

5 JOSEPH XAVIER PALAKKAPPILLIL (INSANE) [DIED] *

3

PALAKKAPPILLIL HOUSE POPE PAUL MERCY HOME SANTHIVANAM

ASHA NILAYAM, PERINGADOOR, THRISSUR DISTRICT, REP.BY

GUARDIAN FR. VARGHESE PALATHINKAL, POPE PAUL MERCY HOME

SANTHIVANAM, ASHA NILAYAM PERINGADOOR, THRISSUR

DISTRICT.

*

3

[IT IS RECORDED THAT R5 DIED AND APPELLANT, RESPONDENT

NOS.2,3,4,6 AND 7 ARE LEGAL REPRESENTATIVES OF DECEASED R5 VIDE

ORDER DATED 01.04.2014 AND VIDE MEMO DATED 16.07.2013.]

6 KIRAN.G.ARONA @ MARIAMMA

D/O.VARU JOSEPH, A-602/4 MILTONS APARTMENTS, JUHU AZAD

ROAD, BOMBAY-400 049

7 ANU BABU

D/O.VARU JOSEPH, VAGAPPALLY HOUSE KOCHUPALLY ROAD

THOPPUMPADY, ERNAKULAM DISTRICT, KOCHI-5.

8 K.A.KUTTY MOOSA [DIED] *

5

PANDAREKOTTIL HOUSE, ERAMALLOOR, CHERTHALA TALUK.

*

5

[THE IMPLEADMENT OF LEGAL HEIRS OF DECEASED R8 IS DISPENSED WITH

AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 09/07/2024 IN IA

1/2024 IN RFA 362/2003.]

9 MRS.CICILY MAMMEN, [DIED; LRs IMPLEADED AS ADDL. R21 TO R25] *

4

PUTHENPURAYIL HOUSE, HOUSE NO XXVIII/1786 [AMALA BHAVAN

ROAD, KADAVANTHRA, KOCHI-20.

10 VIJU PAUL,

S/O.P.M.PAUL PALATHINKAL HOUSE, H.NO.3631, MAKKAR LANE

PERUMANOOR.

11 P.J.JOHN, [DIED; ADDL. R16 TO 20 IMPLEADED] *

2

S/O.VARU JOSEPH, PALAKKAPPILLY HOUSE, NEAR OEN COMPANY

THEKKUMBHAGAM, TRIPUNITHURA P.O., ERNAKULAM.

*

1

ADDITIONAL RESPONDENTS R12 TO R15

ADDL.R12CHINNAMMA GEORGE,

W/O. LATE P.J.GEORGE, PALAKKAPPILLIL HOUSE,

KESAVANPADI, THIRUVAMKULAM, ERNAKULAM.

2024:KER:86929

RFA NO. 362 OF 2003 -3-

ADDL.R13CIGI VINU

D/O.LATE P.J.GEORGE, PALAKKAPPILLIL HOUSE, KESAVANPADI,

THIRUVAMKULAM, ERNAKULAM.

ADDL.R14CIBI GEORGE

D/O.LATE P.J.GEORGE, PALAKKAPPILLIL HOUSE, KESAVANPADI,

THIRUVAMKULAM, ERNAKULAM.

ADDL.R15CIJO GEORGE,

S/O. LATE P.J.GEORGE, PALAKKAPPILLIL HOUSE,

KESAVANPADI, THIRUVAMKULAM, ERNAKULAM.

*

1

[ADDL.RESPONDENTS 12 TO 15 ARE IMPLEADED AS LEGAL HEIRS OF

DECEASED R1 VIDE ORDER DATED 01.4.2014 IN IA No.1719/13]

*

2

ADDITIONAL RESPONDENTS 16 TO 20 IMPLEADED

ADDL.R16PONNAMMA JOHN,

W/O.LATE P.J.JOHN, PALAKKAPPILLY HOUSE, NEAR OEN

COMPANY, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM.

ADDL.R17JOSEPH JOHN,

S/O.LATE P.J.JOHN,PALAKKAPPILLY HOUSE, NEAR OEN

COMPANY, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM.

ADDL.R18JACOB JOHN,

S/O.LATE P.J.JOHN, PALAKKAPPILLY HOUSE, NEAR OEN

COMPANY, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM.

ADDL.R19JOHNSON JOHN.

S/O.LATE P.J.JOHN, PALAKKAPPILLY HOUSE, NEAR OEN

COMPANY, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM.

ADDL.R20MAYMOL MATHEW,

D/O.LATE P.J.JOHN, PALAKKAPPILLY HOUSE, NEAR OEN

COMPANY, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM.

*

2

[ADDITIONAL RESPONDENTS 16 TO 20 ARE IMPLEADED AS LEGAL HEIRS OF

DECEASED R11 VIDE ORDER DATED 01.04.2014 IN IA NO.1719/2013]

2024:KER:86929

RFA NO. 362 OF 2003 -4-

*

4

ADDITIONAL RESPONDENTS 21 TO 25

ADDL.R21BEENA JOSE,

AGED 63 YEARS

W/O K.C. JOSE, KALAPARAMBATHU, KARUMALLOOR P.O.,

KARUMALLOOR, ERNAKULAM DISTRICT -683511.

ADDL.R22NEENA JOB,

AGED 60 YEARS

W/O JOB V., POTTAYIL, POTTAS HOUSE, S.MARADY P.O.,

MUVATTUPUZHA-686673.

ADDL.R23LEENA SOJU,

AGED 57 YEARS,

W/O SOJU JOSEPH PUNNOSE, KOZHUPPAKALAM HOUSE, SMS

NAGAR, VELLAYAMBALAM, THIRUVANANTHAPURAM- 690510.

ADDL.R24SHEENA JORDY,

AGED 52 YEARS, W/O M.A. JORDY, MANNATHUKKARAN HOUSE,

MUVATTUPUZHA P.O. MUVATTUPUZHA- 686661.

ADDL.R25SONA P MAMMEN,

AGED 50 YEARS

C/O BEENA JOSE, KALAPARAMBATHU, KARUMALLOOR P.O.,

KARUMALLOOR-, ERNAKULAM DISTRICT- 683511.

*

4

[THE LEGAL REPRESENTATIVES OF DECEASED 9TH RESPONDENT IS

IMPLEADED AS ADDITIONAL RESPONENT NOS.21 TO 25 IN IA NO.1/2023

VIDE ORDER DATED 19/01/2024]

*

6

ADDITIONAL RESPONDENTS R26 AND R27

ADDL.R26ALICE TOMY, AGED 74 YEARS,

W/O LATE P.J.TOMY, PALAKKAPPILLY HOUSE, KASTURBA NAGAR,

PERUMANOOR, THEVARA-682013.

ADDL.R27MUNNU JOSE TOM, AGED 34 YEARS,

S/O LATE P.J.TOMY, PALAKKAPPILLY HOUSE, KASTURBA NAGAR,

PERUMANOOR, THEVARA-682013.

2024:KER:86929

RFA NO. 362 OF 2003 -5-

*

6

[THE LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS

ADDITIONAL RESPONDENTS R26 AND R27 VIDE ORDER DATED 24.09.2024 IN

IA 3/2024 IN RFA 362/2003]

BY ADVS.

THOMAS P. KURUVILA – FOR R2

GEORGE CHERIAN – FOR R4

GEORGE K VARGHESE, V.J.JOHN,

JOSEPH A VADAKEL, JOSE KURIAKOSE,

C.J. ABRAHAM

GEORGE KARITHANAM VARGHESE – R3

GEORGE K. VARGHESE,

K.G.BALASUBRAMANIAN,

C.J. ABRAHAM

GEORGE VARGHESE PERUMPALLIKUTTIYIL,

V.P.K. PANICKER

PAULSON C. VARGHESE, ARUN PRASANTH C – FOR R9

A.R.DILEEP, SHARATH KUMAR K.J.,

MANU SEBASTIAN,

GEORGE VARGHESE PERUMPALLIKUTTIYIL

V.R.KESAVAKAIMAL, DEVIKA RANI KAIMAL – FOR R22

GEORGE A CHERIAN, LATHA SUSAN CHERIAN – FOR R26 AND R27

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

20.11.2024, ALONG WITH RFA.313/2003, THE COURT ON THE SAME DAY

DELIVERED THE FOLLOWING:

}

}

- JOINT VAKALATH FOR R3 AND R7

}

– FOR R11

}

– FOR R16 TO R20

– FOR R7

2024:KER:86929

SATHISH NINAN &

P.V.BALAKRISHNAN, JJ.

= = = = = = = = = = = = = = = = = =

R.F.A. Nos.313 & 362 of 2003

= = = = = = = = = = = = = = = = = =

Dated this the 20

th

day of November, 2024

J U D G M E N T

Sathish Ninan, J.

These appeals are by the plaintiffs 1 and 2

respectively, in a suit for partition. The suit was

dismissed by the trial court.

2. The properties sought to be partitioned belonged

to late Varu Joseph(hereinafter referred to as “Varu”).

The first plaintiff, and defendants 1 and 2, are the

children born to Varu in his first wife Thresiyamma. The

second plaintiff and defendants 3 to 7 are the children

born to Varu in his second wife Annakutti. Varu died on

12.12.1972. Thresiyamma died on 10.08.1940. Annakutti

died on 17.01.1975. The suit is filed seeking partition

alleging intestate succession.

3. The suit was resisted by defendants 3, 4 and 7.

In their written statement, the claim of the first

C. R.

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 2 :-

plaintiff for partition was defended relying on Ext.B1

Settlement Deed dated 28.11.1959, executed by Varu

Joseph in favour of the children born in the first

marriage viz. the first plaintiff, first defendant and

second defendant. It was contended that the settlement

of properties under Ext.B1 was in lieu of their shares

in the father's property. Having accepted Ext.B1, they

are estopped from claiming any further rights over the

plaint schedule properties which are the remaining

properties of the father, was the contention.

4. With regard to the claim of the second

plaintiff, it was contended that the share due to her

was provided at the time of her marriage. All the other

children of Varu Joseph in the second marriage, viz.

defendants 3 to 7, had executed Ext.B2 Partition Deed on

27.06.1981. Therein, the factum of the second plaintiff

having been provided with her share and the consequent

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 3 :-

non-allotment of any properties to her was specifically

narrated. The second plaintiff had acknowledged and

affirmed the above in Ext.B3 Sale Deed executed by the

7

th

defendant in favour of a third party, who is

impleaded in the suit as the 9

th

defendant. The second

plaintiff had joined in Ext.B3 Sale Deed for such

purpose. Therefore, the claim for partition by the

second plaintiff cannot be sustained, it was contended.

A plea of adverse possession and ouster was also urged.

So also, a counterclaim was raised seeking partition of

the properties covered under Ext.B1 claiming that, if

Ext.B1 is found to be void the said properties are also

liable to be partitioned.

5. The trial court held that, by virtue of Ext.B1,

the claim of the first plaintiff cannot be sustained.

The claim of the second plaintiff was negatived relying

on the recitals in Exts.B2 and B3 documents. The suit

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 4 :-

and the counterclaim were dismissed. Plaintiffs 1 and 2

filed separate appeals. There is no appeal challenging

the dismissal of the counterclaim.

6. We have heard Sri.George Varghese

Perumpallikuttiyil, the learned counsel for the first

plaintiff-appellant, Sri.Varghese Kuriakose, the learned

counsel for the second plaintiff-appellant, Sri.George

Cherian, the learned Senior Counsel, Sri. K. G.

Balasubramaniyan and Sri. V.R.Kesava Kaimal on behalf of

the contesting respondents.

7. The points that arise for determination in these

appeals are: -

(i) Was the trial court right in having negatived the claim

of the first plaintiff, by relying on Ext.B1 Settlement Deed?

(ii) Was the trial court right in upholding the

relinquishment of rights under Ext.B1, in the light of Section

6(a) of the Transfer of Property Act?

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 5 :-

(iii) Was the trial court right in having negatived the

claim of the second plaintiff by holding that under Exts.B2 and

B3 documents she had acknowledged relinquishment of her

rights?

8. Ext.B1 is the Settlement Deed of the year 1959.

It was executed by Varu, the father of the plaintiffs

and defendants 1 to 7. It is executed in favour of the

first plaintiff and defendants 1 and 2 who are the

children born to him in his first wife. Ext.B1 recites

that the properties thereunder are settled in favour of

the first plaintiff and defendants 1 and 2 in lieu of

the share which they would normally inherit from their

father. Therefore, in the light of Ext.B1 settlement

deed, the claim for partition made by the first

plaintiff cannot be maintained, is the defence.

9. The learned counsel for the first plaintiff

would on the other hand contend that Section 6(a) of the

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 6 :-

Transfer of Property Act stipulates that a mere right of

succession cannot be alienated. Therefore, Ext.B1 cannot

be held against the first plaintiff to contend that his

right of inheritance from his father has been lost

thereunder.

10. Section 6(a) of the Transfer of Property Act

reads thus:-

“What may be transferred- Property of any kind may be transferred,

except as otherwise provided by this Act or by any other law for the time

being in force,-

(a) The chance of an heir-apparent succeeding to an estate, the chance

of a relation obtaining a legacy on the death of a kinsman, or any other

mere possibility of a like nature, cannot be transferred;”

Therefore, a spes successionis ie. a mere chance of

inheritance cannot be alienated. It is not a

transferable property. However, there is a well

recognised exception to the same. In Gulam Abbas v. Haji

Kayyum Ali [1973 (1) SCC 1], the Apex Court held that if the

chance of inheritance is relinquished either by way of a

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 7 :-

family settlement or by accepting consideration towards

the share, then it would operate as estoppel against the

expectant heir to thereafter claim any share in the

estate of the deceased. The above proposition was

reiterated by the Apex Court in Shehammal Vs. Hasan Khani

Rawther and Ors. [AIR 2011 SC 3609]. The Apex Court held :-

“However, notwithstanding the above, as we have held hereinbefore,

the doctrine of estoppel is attracted so as to prevent a person from

receiving an advantage for giving up of his/her rights and yet

claiming the same right subsequently. In our view, being opposed to

public policy, the heir expectant would be estopped under the

general law from claiming a share in the property of the deceased,

as was held in Gulam Abbas case (1973) 1 SCC1, AIR 1973 SC

554.”

The judgment of the Apex Court in Gulam Abbas case (supra)

was relied on by this Court in various judgments

including Damodaran Kavirajan and Ors. vs. T.D. Rajappan [AIR 1992 Ker

397], Jameela Beevi v. Basheer and Ors. [2012 (2) KHC 16] and R. Subbaraj

v. S. Pandiyammal & Anr. [2013 (4) KLT 872]. This Court held thus:

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 8 :-

“There is no doubt that ordinarily there cannot be a transfer of

spes successionis, but there may be exceptions which may be

covered by a deed of family settlement or a deed of

arrangement executed after receiving consideration for a

future share, in which case, it would operate as estoppel

against the expectant heir who claims any share in the estate of

the deceased.”

11. The learned counsel for the first plaintiff

would argue that, if at all estoppel is to apply, the

expectant heir should have executed a release deed,

releasing such chance of inheritance. Such rights

having not been conveyed in the instant case, the

principle as laid down in the above decisions would not

apply, it is argued.

12. The argument is not well founded. By execution

of a release deed by the expectant heir, there could

not be the transfer of any rights because such right

did not exist. It is the representation of the

R.F.A. Nos.313 & 362 of 2003

2024:KER:86929

-: 9 :-

expectant heir, after having received consideration in

lieu of share, that he will not claim any share in the

future, leading the transferor/predecessor to believe

such representation, and his future conduct in not

having made any bequest excluding such expectant heir,

which would operate as estoppel. Section 115 of the

Indian Evidence Act, 1872 defines estoppel thus,

“115. Estoppel.—When one person has, by his declaration, act or

omission, intentionally caused or permitted another person to believe a

thing to be true and to act upon such belief, neither he nor his

representative shall be allowed, in any suit or proceeding between himself

and such person or his representative, to deny the truth of that thing.”

As is evident therefrom, if a person, by his

declaration, act or omission, made another person to

believe a thing to be true, and such other person acted

upon such representation, then the person making such

representation shall not be allowed to resile from such

representation. In Sunderabai and Another v. Devaj Shankara

R.F.A. Nos.313 & 362 of 2003

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Deshpande (AIR 1954 SC 82) the Apex Court explained the

doctrine of Estoppel thus:

“Estoppel is a rule of evidence and the general rule is enacted in S.

115 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which

lays down that when one person has by his declaration, act or

omission caused or permitted another person to believe a thing to be

true and to act upon that belief, neither he nor his representative

shall be allowed in any suit or proceeding between himself and such

person or his representative to deny the truth of that thing. ”

13. In B.L.Sreedhar and Ors. v. K.M.Munireddy (Dead) an Ors. [2003

(2) SCC 355], the Apex Court held,

“ Estoppel is a rule of evidence and the general rule is enacted in

Section 115 of the Indian Evidence Act, 1872 (in short “the

Evidence Act”) which lays down that when one person has by his

declaration, act or omission caused or permitted another person to

believe a thing to be true and to act upon that belief, neither he nor

his representative shall be allowed in any suit or proceeding

between himself and such person or his representative to deny the

truth of that thing. (See Sunderabai v. Devaji Shankar Deshpande

AIR 1954 SC 82).”

In Elumalai @ Venkatesan v. M.Kamala (AIR 2023 SC 659), the Apex

Court observed,

R.F.A. Nos.313 & 362 of 2003

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“Thus there can be no doubt that the 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 his second

marriage. What however remains to be seen is whether the conduct

of Sri.Chandran in executing the release deed and what is more

important, receiving consideration for executing the Release Deed

would result in the creation of estoppel.”

The Apex Court further observed,

“….. 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.”

The Apex Court held that 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 to

mislead an owner into not making dispositions of his

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property inter vivos, the expectant heir could be

debarred from setting up his right. It was held that,

by the mere execution of a Release Deed in respect of a

spes successionis, no transfer takes place since there is no

right to relinquish. The following observations of the

Apex Court on the facts of the case therein are also of

significance: -

“We are of the view that conjecturing that Shri Chandran has

survived his father and his succession had opened intestate in regard

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

Chandran was being cut off from inheritance from the property in

question.”.

Therefore, it is not the execution of a Release Deed

that is determinative but the representation made by

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the expectant heir that he will not claim any future

right, receiving consideration upon such

representation, and leading the predecessor to act upon

such representation which results in the application of

the doctrine of estoppel.

14. Understanding the law as above, we proceed to

analyse Ext.B1 document. It is a settlement deed

executed by the father in favour of the children born

in his first wife. Ext.B1 recites the reason for

settling the properties at that point of time. It is

narrated therein that, the children born in both the

wedlocks are residing together in the house of the

executant and causing space constraints and other

inconveniences. It was necessary to arrange for the

separate residence of the children born in the first

marriage. It further recites that the properties dealt

with under Ext.B1 are being given to the first

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plaintiff and defendants 1 and 2 having due consideration

to the share to which they would be entitled to , from the

father’s properties. From out of the properties settled

on the donees/settlees under Ext.B1, certain items are

given immediate possession of whereas possession of

certain items were retained with the settler during his

lifetime. Ext.B1 dealt with not only the immovable

properties but also movables. It was recited in the

document that the movables included those which

belonged to their mother. The relevant recitals in the

document read thus: -

1þmw \-¼-cp-Im-c\pw `m-cy-bpw 1þmw \-¼-cp-Imc-sâ `m-cy-am-cnð D-

“

Å a-¡fpw Iq-Sn tbm-Pn-¨p C-t¸mÄ 1þmw \-¼-cp-Imc-sâ ho-«nð

Xm-a-kn-¨p-h-cp-óXpw A-{]-Im-cw Fñm-hcpw Iq-Sn tbm-Pn-¨v Xm-a-

kn-¡p-ó-Xn-\v Ø-e ku-Icyw t]m-cm-¯Xp-sImïpw a-äpw \-ap-

¡v ]-e-hn-[am-b A-ku-I-cy-§fpw _p-²n-ap-«p-IÄ¡pw Im-c-W-

am-bn Xo-cp-óXp-sIm-ïpw 1þmw \-¼-cp-Imc-sâ h-I h-kv-Xp ap-X-

ep-I-fnð \n-ópw 1þmw \-¼-cp-Imc-sâ Im-e-ti-jw 2 ap-Xð 4 Iq-

Sn \-¼-cp-ImÀ-¡v \ym-b-am-bn In-«p-hm³ A-h-Im-i-s¸-Sp-ó Hml-

cn h-kv-Xp-h-l-I-fpw Pw-K-a-§fpw \n-P-s¸-Sp-¯nbpw Xm-sg ]-d-bp-

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ó hy-hØ-I-tfm-Sp-Iq-Sn A-h-I-fnð G-Xm\pw h-lIÄ 1þmw

\-¼-cp-Im-c-sâ ssI-h-i-¯nð X-só \n-dp-¯nbpw G-Xm\pw h-

l-IÄ C-t¸mÄ X-só 2 ap-Xð \-¼-cp-ImÀ-¡p B-Zm-b-sa-Sp-

¸m\pw Xm-a-kn-¸m\pw hn-«p ssIh-iw sIm-Sp-¯pw 1þmw \-¼-cp-

Imc-sâ ho-«nð \n-ópw 2 ap-Xð 4 Iq-Sn \-¼-cp-Im-sc C-t¸mÄ X-

só am-än Xm-a-kn-¸n-¡p-óXp B-h-iyhpw k-½-Xhpw am-bn-cn-¡-

sIm-ïv \-½Ä \m-ep-t]cpw k-½-Xn-¨p Sn B-[m-cw F-gp-Xn X-

óXm-Ipóp.

”

1þmw \-¼-cp-Imc³ 2þpw 3þpw 4þpw \-¼-cp-ImÀ-¡v sIm-Sp-

“

¡m³ Xo-cp-am-\n-¨n-«p-Å ho-«p k-½m-\-§fpw A-h-cp-sS -A½-bp-

sS h-I-bm-bp-Å k-½m-\-§fpw F._n.kn ]-«n-I-I-fnð tNÀ-

¯n-«p-ÅXpw h-IIÄ 2þpw 3þpw 4þpw \-¼-cp-ImÀ F-Sp-¯p sIm-

tÅ-ï-Xp-am-Ipóp.

”

Ext.B1 specifically recites that the settlement made

thereunder is in lieu of the shares of the first

plaintiff, first defendant and the second defendant

from the assets of the father. The recitals referred to

above establish in unmistakable terms that the

settlement under Ext.B1 is in lieu of their share in

the father's properties over which they had only a

chance of inheritance. The settlement under Ext.B1 is

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accepted by the donees/ settlees. By acceptance of

Ext.B1, the rights for a future share is expressly

given up in consideration of the properties settled on

them under Ext.B1. The right of inheritance was given

up for consideration namely, the properties given under

Ext.B1. The first plaintiff and defendants 1 and 2

having accepted Ext.B1, are thereafter estopped from

raising any future claim for a share over the estate of

the father. The mere fact that they did not execute a

release deed as such in favour of the father is

immaterial when, Ext.B1 was burdened with such

condition and the same was accepted and acted upon by

the parties. As was the case before the Apex Court in

Elumalai’s case (supra), in the light of the stipulation in

Ext.B1 regarding giving up of future claims on having

received consideration thereunder, Varu did not

consider it necessary to execute a Will excluding the

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donees under Ext.B1. Having taken advantage under

Ext.B1, the first plaintiff cannot now turn around and

lay claim over the estate of the father after his

death. We hold that Ext.B1 operates as an estoppel

against the claim of the first plaintiff, first and

second defendants for partition. We concur with the

finding of the trial court in the said regard.

15. Now coming to the claim of the second

plaintiff, all the children born to Varu in his second

marriage, except the second plaintiff, ie. defendants 3

to 7, entered into Ext.B2 partition in the year 1981.

The second plaintiff was not a party therein. Ext.B2

recited that the second plaintiff was given her share

during the time of her marriage and that she does not

have any manner of rights over the father’s properties

which are dealt with thereunder.

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16. Ext.B3 is a Sale Deed of the year 1991. It was

executed by the 7

th

defendant in respect of the property

allotted to her under Ext.B2 partition. In the said

document the second plaintiff joined as executant No.2.

Ext.B3 refers to Ext.B2 partition as the prior deed. It

recites that the second plaintiff who is the executant

No.2 therein was not a signatory to Ext.B2 partition

and that it is for the said reason that she has joined

in Ext.B3 as an executant. The document further recites

that the sale consideration for Ext.B3 is received by

the 7

th

defendant with the consent of the second

plaintiff. The recital reads thus, Sn `m-Km-[m-c-¯nð Hómw t]-

“

cp-Im-cn-bp-sS k-tlZ-cn {So-km-½ I-£n-tNÀ-ón-cp-ónñ. B-I-bmð Sn-bm³ I-

£n tNÀ-óv B-[m-cw F-gp-Xp-ó-Xm-Ipóp. . Sn Ø-ew D-`-b-k-½-X-s¸-«p

”… …“

33000/---- (ap-¸-¯n-aq-hm-bn-cw cq-]) Xo-dphn-e \n-Ý-bn-¨v Xo-dÀ-°w ap-¸-¯n-aq-hm-

bn-cw cq-]bpw C-tó-Zn-h-kw Rm³ X-ó-Xn-s\ Sn {So-km-½-bp-sS k-½-X-t¯m-

Sp-Iq-Sn A-ó-½ ]-än t_m-²ywh-óv Sn h-I-IÄ C-Xn-\mð ... .

… ”

The learned

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counsel for the second plaintiff would contend that the

above recitals in Ext.B3 would unambiguously prove that

the second plaintiff was asserting her subsisting

rights over the properties dealt with under Ext.B2

partition. She joined as a signatory in Ext.B3 since

she was not a party to Ext.B2. It is because she has a

share in the property that she joined in Ext.B3. The

consideration for Ext.B3 was paid to the second

defendant as consented to by the second plaintiff.

These circumstances only affirm her claim over the

properties covered under Ext.B2, it is argued.

17. The learned counsel for the contesting

defendants would on the other hand contend that Ext.B3

acknowledges Ext.B2 partition as the basic title. In

Ext.B3 the second plaintiff along with the 7

th

defendant

affirms that the property belongs absolutely to the 7

th

defendant. It is recited thus:-“Sn. Øew 1þmw t]-cp-Im-cn ]qÀ-®

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-: 20 :-

D-S-aØ-X-tbm-sS ssIh-iw h-¨v \n-Ip-Xn ap-X-em-b-Xp-IÄ XoÀ-¯v {I-b-hn{I-

b kzm-X-{´y-am-bn AS-¡n A-\p-`-hn-¨v h-cp-ó-XmWv.”. There is no

affirmation by the second plaintiff of any right over

the property but on the other hand , she acknowledges

the absolute title with the 7

th

defendant which she

obtained under Ext.B2 partition. Ext.B3 further recites

that the 7

th

defendant has absolute right to convey the

property by sale and to receive the sale consideration

and that the second plaintiff has joined in Ext.B3 only

to further secure the deal. The recital reads thus :-“ Sn

h-l-IÄ Xo-dv X-cp-ó-Xn-\v Xo-cÀ-°w H-¸n-Sp-ó-Xn-\pw 1þmw t]-cp-Im-cn-¡v A-h-

Im-iw D-sïópw F-ómð Xo-cÀ-°-¯n-sâ Iq-Sp-Xð D-d-¸n-\v th-ïn Sn {So-k

I-£n tNÀ-ón-«p-Å-Xp-am-Ipóp.”. Therefore, it is evident that

the second plaintiff had accepted Ext.B2 Partition Deed

and the allotments thereunder. Having accepted Ext.B2

partition in Ext.B3 Sale Deed, she is estopped from

making any claim over the property dealt with under

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Ext.B3, is the argument.

18. We proceed to discuss on the contention

regarding the acceptance of Ext.B2 partition by the

second plaintiff and its legal consequence. The

recitals in Ext.B3 Sale Deed to which the second

plaintiff also joined as a party are being relied upon

to contend that the case against the second plaintiff

that she has accepted Ext.B2 partition and the recitals

therein. The relevant recitals in Ext.B3 Sale Deed have

already been adverted to by us in the earlier

paragraphs. The said recitals are to the effect that

the second plaintiff though a sharer was not a party to

Ext.B2, that it is under the said circumstance that she

is joining Ext.B3 Sale Deed and that the consideration

for Ext.B3 Sale Deed is being paid to the 7

th

defendant

as agreed to by the second plaintiff. This seem s to

suggest the assertion of rights by the second plaintiff

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in derogation of Ext.B2. However, there are further

recitals in Ext.B3 which acknowledge the exclusive

title of the 7

th

defendant based on the partition.

Therefore, the said recitals by themselves are not

sufficient enough to find whether Ext.B2 partition was

accepted by the second plaintiff or not.

19. At any rate, under Ext.B2 the second plaintiff

was not allotted any share even though under law she

was a co-owner sharer. It is asserted in Ext.B2 that

the second plaintiff has already been given her share

at the time of her marriage and therefore, she is not

being allotted to any properties. Admittedly there is

no registered document evidencing the release of the

rights of the second plaintiff over the properties. In

terms of Section 17 of the Registration Act,

relinquishment, extinguishment or assignment of rights

over immovable property worth ₹ 100/- and upwards,

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could only be by a registered document. Thus, there

being no registered document releasing or relinquishing

her rights over the properties, her rights over the

same subsist notwithstanding Ext.B2. Hence Ext.B2 is of

no avail to deny the rights of the second plaintiff.

20. Now on the question as to whether being a

signatory to Ext.B3 sale deed would operate as an

estoppel against the second plaintiff, we have already

noticed that the recitals in Ext.B3 are not sufficient

enough to hold that she had accepted Ext.B2 partition.

That apart, estoppel would operate only against the

person to whom the representation was made. Strangers to

such representation have no right to thrust such

doctrine on the person who makes the representation. In

B.L.Sreedhar and others v. K.M.Munireddy(dead) and others [AIR 2003 SC

578], the Apex Court held,

R.F.A. Nos.313 & 362 of 2003

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“... Estoppel is based on the maxim, allegans contraria non est

audiendus (a party is not be heard to allege the contrary) and is that

species of presumption, where the fact presumed is taken to be true,

not as against all the world, but against a particular party, and that only

by reason of some act done, it is in truth a kind of argumentum ad

hominem.”

In Chhanganlal Keshavlal Mehta v. Pater Narandas Haribhai (AIR

1982 SC 121) the Apex Court held,

“To bring the case within the scope of estoppel as defined in Section

115 of the Evidence Act : (1) there must be a representation by a

person or his authorised agent to another in any form – a

declaration, act or omission; (2) the representation must have been

of the existence of a fact and not of promises de futuro or intention

which might or might not be enforceable in contract; (3) the

representation must have been meant to be relied upon; (4) there

must have been belief on the part of the other party. In its truth (5)

there must have been action on the faith of that declaration, act or

omission, that is to say, the declaration, act or omission must have

actually caused another to act on the faith of it, and to alter his

former position to his prejudice or detriment; (6) the

misrepresentation or conduct or omission must have been the

proximate cause of leading the other party to act to his prejudice;

(7) the person claiming the benefit of an estoppel must show that he

was not aware of the true state of things. If he was aware of the real

R.F.A. Nos.313 & 362 of 2003

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state of affairs or had means of knowledge, there can be no

estoppel; (8) only the person to whom representation was made or for

whom it was designed can avail himself of it. A person is entitled to

plead estoppel in his own individual character and not as a

representative of his assignee.”

Therefore, the person who is entitled to rely upon the

doctrine of estoppel is only the person against whom

such representation was made. In the case at hand, the

only person who could rely upon estoppel, if at all any

which applies, is only the 7

th

defendant or the persons

who claim under the 7

th

defendant. Thus, the plea of

estoppel is of no avail to negate the rights over the

second plaintiff.

21. It is next contended by the contesting

defendants that without a prayer challenging Ext.B2

partition the second plaintiff is not entitled to

maintain a mere suit for partition. Admittedly the

second plaintiff is not a party to Ext.B2 partition.

R.F.A. Nos.313 & 362 of 2003

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Partition is a recurring cause of action. [See Kora Tomas

v. Joseph (1971 KLJ 457), R. Ramamurthi Iyer v. Raja V.Rajeswara Rao (AIR

1973 SC 643), M.Shivananda v. M.Susheela (2021 SCC Online Ker. 3490),

Manakkal Nadakumar v. M.Subramanyan (ILR 2017 (1) Ker 907). Unless

the rights over the co-owner are proved to be lost by

adverse possession and limitation by establishing

ouster, the right subsists. Merely because the other co-

owners entered into a partition between themselves, it

cannot affect the rights of the second plaintiff. Her

rights remain unaffected. It is not a case where the

second plaintiff is apparently, on the face of the

document, a party to the same, either personally or

through someone on her behalf representing her. In such

an event she would have had to challenge the document.

However, here she is a total stranger to the document.

It being so, the second plaintiff is entitled to ignore

Ext.B2 and maintain the suit for partition.

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22. Defendants 3, 4 and 7 have in their written

statement raised the plea of adverse possession and

ouster. The learned counsel for the second plaintiff

would point out that there is no proper plea of ouster.

No evidence is also adduced to establish ouster. The

trial court held, “The execution of Ext.B2 and the testimony of PW1

and DW1 would reveal that ever since Ext.B1 the defendants 3 to 7 have been in

possession of plaint schedule and Ext.B2 was executed in recognition of it”. The

said finding is apparently incorrect. Ext.B1 was

executed in the year 1959. Varu died only in 1972.

Admittedly the marriage of the second plaintiff was

after the death of Varu, that is, after the succession

opened. The second plaintiff also succeeded to the

property. Ext.B3 document is only in the year 1991. The

suit is filed in the year 1998. Ouster could at best

commence from 1991. The suit is filed within twelve

years therefrom. Evidence regarding ouster is wanting.

R.F.A. Nos.313 & 362 of 2003

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In the circumstances, the plea of adverse possession

and ouster is to fail. Before this Court, no attempt is

made by the contesting defendants to establish

otherwise. The finding of the trial court on adverse

possession is thus liable to be set aside and we do so.

23. The upshot of the findings above is that, while

the claim for partition by the first plaintiff is bound

to fail, the claim of the second plaintiff succeeds.

The plaint schedule properties are the co-ownership

properties of the 2

nd

plaintiff and defendants 3 to 7.

They are entitled to 1/6 shares each.

24. Here it is to be noticed that Ext.B3 is the

Sale Deed executed by the 7

th

defendant along with the

2

nd

plaintiff to the 9

th

defendant. Therefore, their 1/6

shares each, over the property covered under Ext.B3

remains conveyed to the 9

th

defendant. While allotting

properties in the final decree proceedings, the

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property covered under Ext.B3 shall be included towards

their shares so that the interest of the 9

th

defendant

will not be affected.

Resultantly,

(1) R.F.A. 362 of 2003 will stand allowed. The

decree and judgment of the trial court in so far as it

relates to the 2

nd

plaintiff will stand set aside. A

preliminary decree is passed on the following terms:

(i) It is declared that the 2

nd

plaintiff

and defendants 3 to 7 are each entitled

to 1/6 shares out of the plaint schedule

properties.

(ii) The property covered under Ext.B3

Sale Deed shall be included in the shares

of the 2

nd

plaintiff and the 7

th

defendant,

to be allotted to the 9

th

defendant.

(iii) Equities to be worked out in the

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final decree proceedings.

(iv) The trial court to proceed with

steps for final decree as directed by the

Apex Court in Kattukandi Edathil Krishnan And Anr

v. Kattukandi Edathil Valsan And Ors [2022 LiveLaw(SC)

549]

(2) R.F.A.313 of 2003 will stand dismissed

affirming the dismissal of the suit as against the 1

st

plaintiff.

(3) Parties to bear their costs in the appeals.

Sd/-

SATHISH NINAN

JUDGE

Sd/-

P.V.BALAKRISHNAN

JUDGE

kns/-

//True Copy//

P.S. To Judge