B.M. Fathima Bibi and 2 others vs Idris Mohammed and 7 others

S.S. Subramani, J.—Defendants in O.S. No. 1276 of 1979, on the file of II Additional District Munsif s Court, Erode, are the appellants.

Suit filed by plaintiffs, who are father and son, was to declare their title to the suit property, and for recovery of possession from the defendants.

Material averments in the plaint may be stated as follows:-

The schedule property originally belonged to one H. Hajee Shaik Madhar Sahib. He executed a gift deed in favour of 2nd defendant and his

brother K. Mohammed Abdul Salam on 2940-1941 in respect of the suit properties and other properties. Ex.A-6 is the said deed. The acquirer

had also executed another gift deed on 6-3-1927, evidenced by Ex.A-10 in favour of his daughter late Ayisha Bibi. Second plaintiff, first

defendant and one Abdul Salam are brother and sister, and are children of the said acquirer. As between the donees, under Ex.A-6, there was a

partition on 11-12-1926, and the plaint properties were allotted to the second plaintiff. 2nd plaintiff''s sister, who is the first defendant in the suit,

requested her mother that she may be given some properties, and to satisfy her demand, Ayisha Bibi (Ex.A-11). In that document, second plaintiff

is also an attestor. In that document ExA-11, the property is described as though the plaint properties are also included therein. It is said that the

description shown as southern boundary in the gift deed is not correct, and none had the intention to convey the plaint property also as per Ex.A-

11 to the first defendant as per the settlement deed. It is said that the second plaintiff was not aware of the contents of the documents, but she

attested the same at the instance of the mother Ayisha Bibi, who executed the gift deed. In spite of the recitals, second plaintiff continued to be the

owner of the property and was enjoying the same as before. In or about 1969, first defendant who was residing far away, wanted to occupy the

building which is the subject matter of Ex.A-11 settlement deed. In the property that was gifted by their mother, there was no bath room or

lavatory, and, at the request of the first defendant, who is none other than his sister, second plaintiff allowed her also to make use of the same along

with him. It is said that it is only a permission granted and the first defendant did not have any right over the property. It is seen that the first

defendant executed settlement deeds in favour of defendants 2 and 3 which included the plaint schedule property, and they began to claim hostile

title to the suit property. They also began to interfere with the second plaintiff''s possession over the plaint item. The second plaintiff also executed

settlement deed in respect of the plaint property in favour of the first plaintiff, who is none other than his son. It is averred that none of the

defendants has any right over the plaint property, and the same is the subject matter of Ex.A-10 and they alone are entitled to the same. Since

defendants are claiming a right over the property, the suit has been filed for the reliefs stated above.

In the written statement filed by defendants 1, 2 and 3, they dispute the claim of the plaintiffs over the plaint item. According to them, as per

Ex.A-10, plaint schedule property was not included therein. In fact, even under Ex.A-6, the acquirer, namely, Hajee Sheik Madhar had already

gifted the plaint property to their mother Ayisha Beebi, and in fact, the acquirer did not have any right to gift the plaint schedule property also to the

plaintiff No,2 and his brother under Ex.A-10. It is also said that when the settlement deed was executed as per ExA-11, second plaintiff was well

aware of the same, and he was also a consenting party regarding the subject matter of the properties therein. The various circumstances put

forward to invalidate Ex.A-11 and also the attestation, are disputed by the defendants. It is said that the attestation will estop the plaintiffs from

claiming any right over the plaint property. The defendant further contended that since the plaint property belongs to them and also on the principle

of estoppel, they are not entitled to any right over the suit property. They pray for dismissal of the suit.

The trial Court, as per judgment dated 13-11-1981, dismissed the suit. It marked Exx.A-1 to A-14 on the side of the plaintiffs, and Exx.B-1 to

B-9 on the side of the defendants. Second plaintiff was examined as P.W.1 and second defendant''s husband was examined as D.W.1. The trial

Court also came to the conclusion that the plaint property was not the subject matter of the gift Ex.A-10 and the same has already been gifted to

Ayisha Bibi under Ex.A-6. He further came to the conclusion that by attesting Ex.A-11, second plaintiff has admitted the truthfulness of the earlier,

gift wherein it is said that the plaint property is also gifted to Ayisha Bibi. It also found that in the boundary description Ex.A-10, there is

misdescription, and, by virtue of Ex.A-6, the donee came into possession of the properties inclusive of the plaint schedule. It was also of the view

that subsequent to 1952, second plaintiff continued to look after the affairs of the first defendant which includes the taking of income from the plaint

item on her behalf for these reasons, it was held that not only the plaintiffs had no title, but also they were barred from putting forward any claim on

the principle of estoppel.

Against the said decision, plaintiffs preferred A.S. No. 122 of 1982, on the file of District Court, Erode. The lower Appellate Court

reconsidered the entire case, and it came to the conclusion a reading of the boundary description itself will make it clear that no portion of the plaint

property is covered under Ex.A-6, and in Ex.A-10 alone, the plaint schedule property is included. It said that the second plaintiff and his brother

obtained valid title under Ex.A-10, and the same was conveyed to the first plaintiff subsequent to the partition. It was further held that the

attestation by the second plaintiff in Ex.A-10 settlement deed is also not going to affect the rights of parties since both of them were aware as to

their title. Setting aside the judgment of the trial Court, a decree was granted in favour of plaintiffs, by allowing the Appeal. It is the said judgment

of the lower Appellate Court that is challenged in this Second Appeal.

At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:-

1) Whether the lower appellate Court is correct in holding that the attestation of the gift deed, 1 Ex.B-3, by the second plaintiff would not

establish proof of his consent to the gift transaction and as such would not the second plaintiff be estopped in law from disputing the genuineness of

the gift under Ex.B-3?

2) Whether the lower Appellate Court is right in holding that the second plaintiffs attestation in Ex.B-3 has been obtained by fraud when there is no

pleading or proof to that effect?

3) Whether the lower Appellate Court has committed an error in failing to consider the question whether the 1st defendant has not acquired title to

the property by adverse possession?

and

4) Whether the lower Appellate Court is right in holding that only a portion of door No. 69 had been gifted to the second defendant?

Question No. 4 deals with the subject matter of the gift covered under Exs.A-6 and A-10. The lower Appellate Court found that in Ex.A-10,

the plaint schedule is not included, and it is included only in Ex.A-6. The lower Appellate Court has given valid reasons to come to the conclusion

that the donor did not have any intention to exclude the plaint schedule in Ex.A-6. The vast difference in the boundary description in Exs.A-6 and

A-10 was relied on by the lower Appellate Court. Even though the same is Challenged in the memorandum of appeal and also a question of law is

raised on the same, learned counsel for the appellants did not seriously urge anything questioning the correctness of the said finding. In fact, the

finding is based on appreciation of evidence, as to what is the property covered by Exs.A-6 and A-10. There is no question of law much less

substantial question of law on that finding. It is only the identity of the lower Appellate Court and also taking into consideration Exs.A-6 and A-10,

I hold that no portion of the plaint property is covered by the gift deed of 1927, marked as Ex.A-10 which stands in the name of Ayisha Bibi.

Question No. 4 is, therefore, found against the appellants.

The remaining first three questions deal with the principle of estoppel. According to the appellants, second plaintiff has attested Ex.A-11

settlement deed with full knowledge. Plaint schedule properties were included in the deed. The very execution of Ex.A-11 was put through him and

he knew the minute details of the gift deed Ex.A-11 and having attested the deed with full knowledge of its contents, the same amounts to

estoppel. It is their further case that the said attestation amounts to consent. The plaintiffs are, therefore, debarred from claiming title over the plaint

schedule.

It is true that in Ex.A-11 second plaintiff is an attestor. In the plaint, it is averred that he became attestor only to pacify his mother and sister. It is

his further case that he was not aware of the contents of the document, nor was the document read over to him before attestation. He pleaded

ignorance about the contents and also about the description of property in Ex.A-11. The same is seriously disputed by the appellants. According

to them, it was at the instance of second defendant, Ex.A-11 came into existence. Having represented that the plaint property is also covered by

the gift and gifted the same to the first defendant, he cannot turn round and say that the plaint property belongs to him. The only question that

requires consideration is, whether, by attesting Ex.A-11, plaintiffs are debarred from claiming their right over the property. In this connection, it

may be noted that by urging the contention that the principle of estoppel applies, defendant impliedly admit that plaintiffs are the title-holders, and,

on the principle of estoppel, they cannot claim right over it. In (1965) II S.C.W.R. 664 (R.S. Maddanappa v. Chandamma & another), their

Lordships of the Supreme Court considered the question of estoppel, and held thus:-

The provisions of S.115 are in one sense a rule of evidence founded upon the well known doctrine laid in Pickard v. Sears in which the rule was

stated thus: ""Where one by his word or conduct willfully causes another to believe for the existence of things and induced him to act on that belief

so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the first

time"". The object of estoppel is to prevent fraud and secure, justice between the parties by promotion of honesty and good faith. Therefore, where

one person makes a misrepresentation to the other about a fact he would not be shut out by rule of estoppel, if that other knew the true state of

facts and must consequently not have been misled by misrepresentation. The general principle of estoppel is stated thus: In Caimeross v. Larimer

The doctrine will apply which is to be found in the laws of all civilised nations that if a man either by words or by conduct has intimated that he

consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent

and he thereby induces others to do that from which they otherwise might have abstained he cannot question the legality of the act, he had so

sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. If a party having an

interest to prevent an act being done and accuracies in it is as to induce a reasonable belief that he consents to it and the position of others is

(altered by their giving credit to his sincerity he has no more right to challenge the act to their prejudice than he would have had if it had been done

by his previous licence. The person claiming the benefit of the doctrine of estoppel must show that he has acted to his detriment on the faith of

representation made to him. A person who sets up an estoppel against the other must show that his position was altered by reason of the

representation or conduct of the latter and unless he does that even the general principle of estoppel cannot be invoked by him"".

In that case, the argument that the law of estoppel by representation is not confined to the provisions of Sec. 115 of the Evidence Act was

repelled. It was held thus:

...In some of the decisions of the High Courts"" reference has been made to ''equitable estoppel'' but we doubt whether the court while determining

whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of Sec. 115 of the Evidence Act....

In A.I.R.1973 S.C.814 (Banwari lal v. Sukhdarshan), their Lord ships reiterated that ''estoppel is but a rule of evidenced and except in cases

like those under Sec.43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property

regarding which the representation is made:

In Chhaganlal Keshavlal Mehta Vs. Patel Narandas Haribhai, , their Lordships held that to bring the case within the scope of estoppel as

defined in S.115, Evidence Act, seven conditions have to be satisfied. They are:-

(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 of 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 of 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 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.

In this case, the plea of estoppel is taken on the ground that the second plaintiff has attested Ex.A11. It is not a case where the parties were

not aware of the real state of affairs. By attestation, he did not induce either his mother or first defendant in this case that property which did not

belong to them now belongs to them. Even before attestation, the rights of parties were governed by ExsA-6 and A-10. If only the parties were

interested in knowing the real state of affairs, if they were not earlier aware of it, a reading of the document alone would have been sufficient. It has

also come out in evidence that while executing Ex.A-11, nobody had an intention to convey the same property which was already covered under

ExA-10. If that was the intention, nothing prevented the second plaintiff from being a party to the document itself than be an attestor. It is settled

law that attestation by itself will not create any interest, nor will it amount to any estoppel. If attestation amounts to representation, then the other

ingredients of Section 115 of the Evidence Act must also apply. That means, there was a representation by the second plaintiff. The mother was

not aware of the real state of affairs, and the first defendant was also in darkness. By virtue of that attestation, their mother and the first defendant

might have acted to their detriment. Nobody has such a case.. If at all there was any detriment, that detriment is only to the second plaintiff and to

none others. First defendant must further prove that the attestation was in the nature of consent to give his property also under ExA-11 and which

he obtained under ExA-10. There could not have been any such-representation since all along the case of the first defendant was that the first

defendant''s property was covered under ExA-10 only. If the property was already covered under Ex.A-10, there is no necessity for a consent

from the second plaintiff, nor was there any necessity for a representation by him. By consent alone, the property which was not covered by ExA-

10 also cannot be included. When the definite case of the first defendant is that at no point of time the"" plaint property was covered by ExA-6, and

they were all along in enjoyment as per ExA-10, there is no scope for applying the principle of estoppel.

Our High Court had occasion to consider this point in the decision reported in 100 L.W.363 (Nagarathinam, K v. Rajammal, K.), wherein it

was held thus:-

If it is shown to the Court that an attesting witness was a consenting party to a particular transaction, he would be estopped from questioning the

effectiveness of the said transaction, on a later occasion on the ground that he was not a party there - to, though some of the decisions proceed on

the footing that there is a sort of usage in this part of the country to obtain the signature of a party as an attesting witness whenever his consent is

required for the said transaction. In all these cases, an inference has been drawn from all the facts and circumstances of the case that the attesting

witness therein was really consent to the transaction in question.

It is true that an attesting witness can be shown to have fully understood the particular transaction so that his attestation may support the inference

that he was a consenting party. The question is really one of fact and should be determined with reference to the circumstances.''''

Even in the written statement of the defendants, none of the defendants has any case that the second plaintiff is a consenting party and that he

also agreed to convey some property which on that date did not belong to their mother. In this connection, the evidence of the first plaintiff was

also brought to my notice. First plaintiff has said in chief-examination itself that while he became an attestor, even though he knew that the

boundary description was not correct, he immediately wrote to them that there is some misdescription and a portion of it is likely to be claimed

under that document, and he opposed it. There is no effective cross-examination on that point. As already said, in R.S. Madanappa and Others

Vs. Chandramma and Another, their Lordships have held that ''the object of estoppel is to prevent fraud and secure justice between the parties by

promotion of honesty and good faith''. If the parties knew the true state of affairs and there cannot be any question of being misled even if there is

any misrepresentation, the principle of estoppel by representation will not apply. Question Nos. 1 to 3 are, therefore, found against the appellant.

The Second Appeal is accordingly dismissed, however, without any order as to costs. C.M.P. No. 6799 of 1983 for stay is dismissed.