Mehanavathy vs Punyakodi

Honourable Mrs. Justice. S. Vimala

Where a grantor had purported to grant an interest in land, or transferred the land, over which he has no interest/title at that time, but

subsequently acquires, the benefit of the subsequent acquisition goes automatically/instantly to the earlier grantee, which is usually expressed as

feeding the grant by estoppel"". This principle is partly based on common law doctrine of estoppel by deed and partly on the equitable doctrine

that a man who has promised more than what he can perform, must make good his promise whenever he acquires the power of performance.

Whether this equitable doctrine of feeding the grant by estoppel would apply to the facts of the case is the issue raised in the second appeal. The

second plaintiff is the appellant and the second defendant is the respondent. The first plaintiff is the mother and after her demise the second plaintiff

has brought on record. The first defendant who is the husband and the second defendant who is the son of the first plaintiff have been recorded as

the legal representatives of the deceased first plaintiff. During the pendency of the suit, the first defendant also died.

The suit was filed by the deceased first plaintiff seeking the relief of injunction and alternatively for the relief of declaration, possession and

damages of Rs. 3,000/- equal to the value of crops taken away. The suit was dismissed. The appeal filed by the second plaintiff in A.S. No. 84 of

1997 also met with the same result of dismissal. Challenging the dismissal, the second plaintiff has filed this second appeal.

Brief facts:

The suit properties were consisted of two items. Item No. 1 was in R.S. No. 16/1 covering an extent of 1 acre 50 cents. The second item was in

R.S. No. 73 covering an extent of 44 cents out of 1 acre 37 cents. The first plaintiff purchased the suit property from the first defendant by virtue

of the sale deed dated 06.06.1961. Patta was in the name of the first plaintiff and she was in possession and enjoyment of the same by paying

kists.

The first item of the suit property was settled in favour of the second plaintiff on 25.03.1986 through a settlement deed. In the maintenance

proceedings between the first plaintiff and the first defendant, the first defendant admitted the ownership of the suit properties and on that basis the

suit for maintenance filed by the first plaintiff was dismissed. The second defendant also neglect and refused the first plaintiff. In an extent of 80

cents covering both the items casuarina had been planted and when it was seven year old plants it was cut and carried away by the defendants and

the worth of Rs. 3,000/-.

4.1. The first plaintiff died on 21.7.1986. Prior to that on 5.7.1986 the first plaintiff executed a Will in favour of the second plaintiff in respect of the

second item of the property. The defendants were attempting to dispossess the second plaintiff. Hence, the suit.

The suit was resisted by the defendants on the following contentions:

The first plaintiff has no title to the suit properties. She did not purchase the property on 6.6.1961. She never paid any kist. She was not in

possession of the property.

The truth and validity of the settlement deed dated 25.3.1986 has to be proved.

The truth and the validity of the Will dated 5.7.1986 is also disputed.

The defendants never attempted to trespass into the property, because they are in possession of the property it is they who planted in the

casuarina crops. Therefore, there is no need to pay damage.

In respect of the suit properties there had been a prior litigation in O.S. No. 69 of 1962 filed by Mari and Kattan claiming partition against the

first defendant Paramasivam, first Plaintiff Pusanammal and one Perumal. The suit was decreed. The appeal filed in A.S. No. 58 of 1964 and the

second appeal filed in S.A. No. 1098 of 1965 confirmed the decree passed by the trial court and the suit properties were allotted to the share of

the first defendant. Therefore, first defendant was in possession and enjoyment of the suit property.

The trial court took cognisance of the earlier judgment passed in O.S. No. 69 of 1962 wherein it had been held that the suit properties were

joint family properties and each of the branch is entitled to one third share. According to the judgment the suit properties were allotted to the share

of the first defendant. The trial court raised an impertinent question as to how the properties which were allotted to the share of the first defendant

can be claimed by the first plaintiff, forgetting for a while the provisions of Section 43 of the Transfer of Property Act. The trial court concluded

that the sale deed executed by the first defendant under Ex. A1 is not valid. Consequently it was held that the first plaintiff has no right either to

execute a settlement deed or to execute a Will. On these findings the suit was dismissed. On the very same reasoning the first appeal was also

dismissed.

The second appeal has been admitted on the following substantial questions of law:

When a sale is not set aside or held to be invalid but found to be in respect of a joint family property of which the vendor had only a share does

not the purchaser get title to the property ?

When the other sharers do not make a claim in the property can the vendor resist the claim of the purchaser ?

When the sale was effected if the vendor had no absolute title, if subsequently the vendor is found to have a share, does not the purchaser get

that share atleast ?

When there was nothing to discredit the evidence of the attestors and the scribe of the Will, whether the courts below have right in comparing

the signatures of the testatrix ?

Are the circumstances sufficient and the discrepancies material and the suspicious circumstances unexplained to hold the will to not genuine ?

8.1. There is said to be an estoppel where a party is not allowed to say that a particular statement of fact is untrue, whether in reality it is true or

not. It is defined as a disability whereby a party is precluded from alleging or proving in legal proceedings, that a fact is otherwise than it has been

made to appear by the matter giving raise to that disability.

8.2. Where there is a statement of fact in a deed between parties and verified by their seals, an estoppel results and it is called estoppel by deed. It

is a case where the first defendant has executed the sale deed in favour of the first plaintiff and having executed a deed the first defendant is

estopped from contending that the first plaintiff is not the owner.

It is an admitted fact that there had been an earlier proceedings between the co-sharers of the first defendant''s family and in that proceeding first

defendant''s one third share in the entire properties was declared and allotted to the first defendant. At the time when the first defendant executed

the sale deed in favour of the first plaintiff on 6.6.1961 whether he had the competency to execute the sale deed? Whether he had the transferable

title to the suit properties ? What was the nature and character of the property at the time when he sought to transfer the property in favour of the

first plaintiff. These are the questions arising for consideration. It has been held in the earlier proceedings that those properties which included the

suit properties are the joint family properties and that the first defendant was entitled to one third share. Therefore, it is clear that on the date when

the first defendant transferred the property in favour of the first plaintiff it is valid to the extent of the first defendant''s undivided one third share. It is

made valid subsequently also i.e., after the decree, as the undivided one third share got divided and the divided share allotted to the first defendant

was the suit properties.

Learned counsel for the appellant relied upon Section 43 of the Transfer of Property Act and contended that the doctrine of feeding the grant

by estoppel would apply to the facts of the case and the sale deed executed by the first defendant in favour of the first plaintiff would become valid.

It is also pointed out that the grounds on which the first defendant would have challenged the sale deed was not the line of defence taken in the

earlier proceedings. It is not the case of the first defendant that the sale deed was sham and nominal. The truth and validity of the sale deed

executed by the first defendant in favour of the first plaintiff was not even raised in the earlier proceedings. Whether the first defendant had a

conveyable title at the time of execution of the sale deed in favour of his wife and if so to what extent should have been the issue raised and

answered by the trial court. Even assuming, the contention that the property is the joint family property is true and correct even then the first

defendant had conveyable title/marketable title, so far his undivided share is concerned. Subsequently, when the extent of property and the exact

location of the same is ascertained in the final decree proceedings then the subsequent acquisitions passes to the transferee to the sale deed.

10.1. The first defendant cannot approbate and reprobate. Mutually contradictory plea, which is destructive of each other cannot stand together.

When the wife (P1) claimed maintenance, it was the plea of the husband (D1) that wife is the owner of the property and therefore she is not

entitled to maintenance. But when the wife claimed property, it is the plea of the husband that the wife is not the owner of the property. Such

chameleon plea cannot be appreciated and it should be condemned.

10.2. Once it is found that the first plaintiff acquired the title under the sale deed, whether the second plaintiff derived title by virtue of the settlement

deed under Ex. A3 and the will under Ex. A14 is the other issue. Learned counsel for the respondent pointed out the contradictions in the evidence

of witnesses and contended that the genuineness of the Will is under grave doubt. P.W. 2 is the attestor in the Will and P.W. 3 is the scribe of the

will. One of the co-sharer of the first defendant is also another attestor. There is also an admission by P.W. 4 Kattan that the suit properties were

the properties allotted to the first defendant in the prior partition. The attesting witnesses have clearly spoken that they saw Pusanammal signing the

will. P.W. 4 has also spoken about the possession of the suit property by the first plaintiff. The kist receipts filed go to show that the first plaintiff

had been in possession of the suit property. As contended by the learned counsel for the appellant when the husband and son of the first plaintiff

have distanced themselves and had become the fighting monk, then it is quite natural that the first plaintiff would have thought it fit to execute the

will in favour of the second plaintiff. There are no suspicious circumstances surrounding the execution of the will.

Learned counsel for the appellant contended that without taking the assistance of the expert it is unexpected of the courts below to come to the

conclusion that the signature of the executant was not genuine. In support of the contentions the following decisions are relied upon:

In 2010-4 L.W. 435 C.G. Jayaraman and The South Indian Bank Ltd. Vs. C. Gangadharan, 2. The South Indian Bank Ltd., rep. by its Branch

Manager, having its office at Mahe, Mahe Vs. C. Gangadharan)

11.1. Whether the court will discharge the responsibility of comparing the signature by itself or to send it for the opinion of the experts depends

upon the facts and circumstances of each case, more especially, the nature of the signature. If the signature is not so complicated and if a mere

magnifying glass alone would be sufficient to identify the forgery, then the court may choose to compare the signature without relegating the parties

to take the expert opinion so that much time and money is not wasted. But if the signature is not plain and simple and if the court come to the

conclusion that experts can play a more competent role in giving the opinion then the court may send the document for expert opinion. So far as

this case is concerned, Ex. A14 is the unregistered will. Ex. A14 is dated 5.7.1986. Ex. A3 settlement deed is dated 5.3.1986. By comparing Ex.

A14 with Ex. A3 there seems to be no marked difference in signature to the extent of doubting the genuineness. Moreover when the execution of

the will is admitted by the executant herself and when the execution is spoken to by the attesting witness and scribe and the circumstances in which

the will is executed do not create any doubt when the validity of will must be upheld.

The title of the first plaintiff, consequently title of the second plaintiff are upheld. Therefore, the findings of the trial court and the first appellate

court has to be set aside and accordingly set aside. The substantial questions of law are answered in favour of the appellant.

In the result, the Second Appeal is allowed. The judgment and decree, dated 2.11.1998 rendered in A.S. No. 84 of 1997 on the file of Sub

Court, Tiruvallur, confirming the judgment and decree dated 14.10.1996 rendered in O.S. No. 159 of 1986 on the file of the District Munsif

Court, Tiruvallur are set aside. The suit in O.S. No. 159 of 1986 is decreed. Originally, the suit was filed seeking the relief of injunction and

subsequently after the death of the first plaintiff, the relief was altered to one as that of seeking the relief of declaration, recovery of possession and

for damages to the extent of Rs. 3,000/-. In so far as the relief of damages are concerned, there is no evidence to show that the value of the crops

worth Rs. 3,000/- was cut and carried away. Therefore the relief for damages of Rs. 3,000/- is declined. In view of the findings earlier, the suit is

decreed for relief of declaration and recovery of possession. The second defendant is directed to hand over the possession to the second plaintiff

within two months.