K.A. Abdul Gafoor, J.@mdashA preliminary decree was passed in favour of the plaintiff. In a suit for partition and separate possession of 1/6th of the plaint schedule properties. But that decree was reversed at the lower appellate stage. Therefore, this Second Appeal. The reason for reversal was Ext.B1 document executed by the plaintiff''s mother in favour of the plaintiff and her brother. That is a gift deed. It is stipulated therein that the plaintiff and her brother Sreedharan Nair will not have any share in the property of their mother, the donor, left as balance after such gift, which is more specifically described as item. A Schedule therein. Item B schedule is the property gifted. Because of the stipulations in the document, the lower appellate Court found that the plaintiff was estopped from seeking partition. The lower appellate Court relied on the decision of this Court in Pathumma Kunju & Ors. v. Assya & Ors. (ILR 1978 (2) Ker 529). Therefore, this appeal at the instance of the plaintiff mainly raising a substantial question of law whether stipulation in a gift deed like Ext.B1 that the plaintiff will have no right to succeed to the balance of the properties of the donor is enforceable in law.
2. It is contended by the appellant that the right to succeed arises only at the death of the donor in Ext.B1. Therefore, such right cannot be relinquished in advance and whatever recitals contained in Ext.B1, to the extent of such relinquishment is void and therefore, she can seek partition and she is entitled to 1/6th share in the remaining property which is specifically described as schedule A to Ext. B1.
3. It is contended by the defendants 1 and 2 that they obtained the entire property made mention of as item A schedule in Ext. B1, on the strength of an assignment by the remaining heirs of the executant of Ext. B1. They obtained that properly believing the contents contained in Ext.B1 that the plaintiff and the said Sreedharan Nair had relinquished their right over the remaining property. When the defendants were thus made to believe the unequivocal relinquishment based on a document, necessarily, the plaintiff is estopped from seeking partition. It is submitted that the decision in Pathumma Kunju v. Assya & Ors. (ILR 1978 Ker 529) squarely applies to the facts of this case. Added to this is a later decision of this Court reported in
4. It is contended by the appellant that whether relinquishment of right to succeed, far earlier than its occurrence, is in accordance with law is not adverted to in the former decision as also in the latter one. Therefore, the real point arising in this case is that specific aspect which requires reconsideration.
5. According to me what is staring at the appellant-plaintiff is the doctrine of estoppel because of the recital to the effect of the relinquishment as contained in Ext.B1. Ex. B1 is not a disputed document. That was in favour of the plaintiff as well as her brother Sreedharan Nair who later transferred his rights in favour of the plaintiff as per Ext.B2. Thus the plaintiff is in executive possession of the entire properly gifted by Ext.B1. Both of them are aware of the contents of Ext.B1. Ext.B1 had been obtained from the registry, being a gift, by the plaintiff herself. The plaintiff cannot therefore, feel ignorance of the contents therein. In Ext. B1 it is specifically stipulated as follows:
[Matter in vernacular omitted. Ed]
(In accordance with my wish a documentary stipulation has to be made for the free enjoyment of the share that you may get after my life in the property belonging to me).
Thus, the effect of the document is not to give a gift and thereby relinquish all the future rights to succeed. By reason of Ext.B1 what is conveyed is the share of the plaintiff and her brother that they may have in case they succeed to the properties of the donor. It is against such share that they may obtain in future, the property is gifted. It is further stated in the document that,
[Matter in vernacular omitted. Ed.]
(After my life you will have no right over my properties and you cannot raise such claim).
6. This is not a mere desire of the donor, but really it has an effect of agreement and consent that they cannot ask for any share in the property. It is based on that condition and consenting to that condition that they had accepted the gift. Now, they cannot turn round. In such circumstances, the principle laid down in Pathumma Kunju & Ors. v. Assya & Ors. (ILR 1978 Ker 529) is squarely applicable because "equitable doctrine of election or law of approbate and reprobate" which we adopt from English law is derived on a principle which is old, basic and wide. A person may not take a benefit and reject an associated burden or to put it in another way, a person may not choose between parts of a single transaction. He may not approbate and reprobate. This aspect laid down in the said decision is squarely applicable to the facts of this case when we read the stipulations in the document to which the parties had consented, to give and take the gift.
7. In the decision reported in
S. 6(a) of the Transfer of Property Act is a rule of substantive law while S. 115 of the Evidence Act enacts a rule of estoppel which is one of evidence. These two provisions operate in different fields and under different circumstances. There is no conflict between the two Sections and both the Sections can be given full effect on their terms in their respective spheres. If the position as contended for by the respondents, that under no circumstances a spes successions could be relinquished is accepted, it will make the provision contained in S. 115 of the Evidence Act nugatory and of no effect. S. 115 of the Evidence Act contains a rule of estoppel that if one person by his declaration, act or omission made another person to believe a thing to be true and that person acted upon that belief, the person making the representation shall not be allowed to deny that representation on the faith of which the other person acted. The Supreme Court has considered the effect of S. 6(a) of the Transfer of Property Act on S. 43 of the same Act which also embodies a rule of estoppel. In that context in
The two provisions operate on different fields, and under different conditions, and there is no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes succession is at the date of transfer are not within the protection afforded by S. 43 would destroy its utility to a large extent.
The same principle will apply in regard to an estoppel as embodied in S. 115 of the Evidence Act as well.
Thus, as held in the very same decision.
The fact that the plaintiff gave up his right of inheritance for a consideration, namely the immediate obtaining of certain properties towards his 1/5th share will estop him from claiming any share over the rest of properties which are plaint schedule properties.
Thus this is a case of estoppel on the part of the plaintiff on the basis of which the defendant had acted, obtaining sale of the remaining properties from the rest of the heirs of the mother of the plaintiff. S. 43 of the Transfer of Property Act also contains a principle of estoppel as in the case of S. 115 of the Evidence Act. In such circumstances as held in
Where the transferee knew as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer....But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43 however fraudulent the act of the transferor might have been.
When the defendants purchased the property on the basis of Exts.B3 and B4 from the remaining heirs of the mother of the plaintiff with the juncture of Sreedharan Nair one among the donees in Ext. B1 who expressly conceded that he did not have any right in the property, the said document shall protect the defendants from the claim of the plaintiff for partition. In such circumstances, the trial court decree was rightly reversed by the lower appellate court. The question of law is not sufficiently forceful enough to invite interference.
Appeal is accordingly dismissed. No costs.
