SAROJINI AMMA Vs. JOHNSON

JUDGEMENT

(1.) A 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 plaintiffs 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.) 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. Ext. 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 property 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: (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. BI 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 as against such share that they may obtain in future, the property is gifted. It is further stated in the document that, (After my life you will have no right over my properties and you cannot raise such claim)