HAMEED Vs. JAMEELA

JUDGEMENT

(1.) WOULD receipt of money in lieu of share by an heir-apparent in the property of his/her father during lifetime of the latter estop the heir from claiming share in the property on the father dying intestate? That is the substantial question of law framed for a decision in this appeal.

(2.) THIS Second Appeal was disposed of by this Court as per judgment dated may 26, 1999. Respondent No. 1 challenged judgment and decreein the Supreme Court in Civil Appeal No. 3583 of 2001. Allowing the appeal the case was remitted to this Court for a decision after framing substantial question of law. Accordingly, the above substantial question of law is framed.

(3.) THE Second Appeal arises from judgment and decree of learned Additional District judge, North Paravur in A. S. No. 138 of 1996 confirming j udgment and preliminary decree for partition passed by learned Munsiff, Perumbavoor in O. S. No. 228 of 1992. Appellant and respondent Nos. 1 to 9 are the children of respondent No. 10 and Aboobacker who died intestate on 25. 2. 1974. The suit properties belonged to the late Aboobacker. According to respondent No. 1 on the death of her father, Aboobacker intestate she got 1/13th share in the suit properties. Respondent No. 1 claimed partition and separate possession of her share. Respondent No. 11 is the wife of appellant and an assignee from one of her sisters. Appellant and respondent Nos. 2 to 10 contended that Aboobacker had orally gifted the suit properties to them. Respondent No. 1 was given 10 sovereigns of gold at the time of her marriage. Later Aboobacker gave respondent No. 1 Rs. 1,000/- in lieu of her share in his properties and with that amount respondent No. 1 purchased 25 cents as per assignment deed No. 318 of 1972 copy of which is Ext. B1 and in view of that, respondent No. 1 is not entitled to claim any share in the suit properties. It is also contended that plaint E schedule property was sold by Aboobacker during his lifetime and that the share of respondent Nos. 3 and 7 was purchased by respondent Nos. 9 and 11. Learned Munsiff found that respondent No. 1 at a time when her father was alive and succession had not opened could not transfer her right in the father's property and is entitled to partition and separate possession of the share claimed by her. Accordingly a preliminary decree was passed. Appellant took up the matter in appeal. Learned additional District Judge confirmed the judgment and preliminary decree. Hence this second Appeal. Learned counsel for appellant has placed reliance on the decisions in nazir-Ul-Haq and Others v. Faiyaz-Ul-Rahman and Ors. (33 ILR A1. 457); Gulam abbas v. Haji Kayyam Ali (AIR 1973 SC 554) and Damodaran Kavirajan v. T. D. Rajappan (AIR 1992 Ker. 397 ). According to the learned counsel conduct of res pondent No. 1 evidenced by Ext. B1 amounted to estoppel as provided under S. 115 of the Indian Evidence Act (for short, "the Act") and hence she is estopped from claiming share in the suit properties. Learned counsel for respondent No. 1 would contend that ext. B1 cannot be taken into account for any purpose whatsoever, as going by Ext. B1 it appears to be a deed of exchange, respondent No. 1 or her father are not parties to Ext. B1 and hence the recital therein cannot bind respondent No. 1. It is also contended by learned counsel that recital in Ext. B1 is the result of a mischief committed by the appellant in collusion with the husband of respondent No. 1. At any rate Exts. A4 and A5 estopped the appellant and respondent Nos. 2 to 11 from contending that respondent No. 1 has no share in the suit properties. Learned counsel has placed reliance on the decisions in i. T. Commr. , A. P. v. M. andg. Stores (AIR 1968 SC 200) and I. T. Commr. , Bombay v. Rasiklal Maneklal (HUF) (AIR 1989 SC 1333 ).