Shylaja and Others vs B. Vigneshwar and Others

N. Kumar, J.—RFA No. 1192/08 is a plaintiffs regular first appeal against the judgment and decree of the trial Court declining to grant a decree for partition in respect of ''A'' and ''C'' schedule properties.

RFA No. 1331/2008 is by the Fourth defendant challenging the judgment and decree of the Trial Court decreeing the suit of the plaintiff for partition in respect of B and D schedule properties.

As these two appeals arise out of the same judgment and decree, they are taken up for consideration together and disposed of by this common judgment.

For the sake of convenience, parties are referred to as they are referred to in the original suit.

The subject matter of the suit is property bearing No. 640, Block No. 6, Koramangala Extension, Bangalore, which is more particularly described in the schedule to the plaint and referred to as ''A'' schedule property. Similarly, site bearing No. 211, situated at Neethi Marg, Siddarth Extension, Nazarbad Mohalla, Mysore, which is more particularly described in the schedule to the plaint and referred to as ''B'' schedule property. Property bearing No. 179, situated at 7th ''B'' Main, RPC Layout, Vijayanagar, Bangalore, is also more particularly described as ''C'' schedule property. ''D'' schedule properties are movable properties such as gold jewellery and amounts in Savings Bank Accounts. The suit of the plaintiff has been decreed as prayed for in respect of ''B'' and ''D'' schedule properties. Therefore, the subject matter of these appeals are only ''A'' and C'' schedule properties.

One late B.V. Bhadrappa is the propositus. His wife Smt. B. Shuklambike is the third defendant. Plaintiffs 1 and 2 and the second defendant are the daughters. Defendants 1 and 4 are the sons. Fifth defendant is a tenant in a portion of ''A'' schedule property against whom the suit is dismissed and no relief is sought against him.

Second plaintiff died during the pendency of the suit and her L.Rs. have been brought on record as plaintiffs 2(a) to 2(c).

The case of the plaintiffs is, their father late B.V. Bhadrappa during his life time acquired the schedule properties from his self earnings. He was a retired Government servant and a Gazetted Senior Class I Officer. Late B.V. Bhadrappa died intestate, leaving behind, the plaintiffs and the defendants 2 and 4 as his legal heirs. As all the schedule properties are the self acquired properties of late B.V. Bhadrappa, the plaintiffs and defendants are entitled to 1/6th share each in each of the properties. After the death of B.V. Bhadrappa, the schedule properties are in joint possession of the plaintiffs and the defendants. The first defendant is the ''manager'' of the joint family property. The plaint schedule properties are the joint family properties of the plaintiffs and the defendants. Late Sri. B.V. Bhadrappa died on 08-11-93. Since then the first defendant is managing the joint family properties.

''A schedule property was acquired by late Bhadrappa on 06-09-74 by purchasing the same from the then City Improvement Trust Board (CITB). On 25-02-91 the present Bangalore Development Authority (BDA) executed the absolute sale deed of the property in the name of late B.V. Bhadrappa. The first defendant in order to knock away the valuable property, approached the BDA official and got executed a Rectification Deed, without the knowledge of the plaintiffs, including his name in place of his father. The Rectification Deed is not binding on them since their father late B.V. Bhadrappa and the plaintiffs were not parties to the same. The said property is in joint possession of the plaintiffs and the defendants.

Sri. B.V. Bhadrappa also acquired ''B'' schedule property. It is his self acquired property. After the death of B.V. Bhadrappa who died intestate, the said property became the joint property of the plaintiffs and the defendants.

Late B.V. Bhadrappa also acquired C'' schedule property in the name of his wife - the third defendant, in the year 1976-77, since he had already got a site from the then CITB on 06-09-74 and at that relevant period there was a condition that a person cannot hold more than one site/property in his name. The plaintiffs submit, that for all practical purposes, their father paid the entire consideration for the above said site. After the death of B.V. Bhadrappa, the said site continued as a joint family property. In the month of January, 1999, the second defendant in active collusion with the other defendants, in order to knock away the valuable property, nominally, without any consideration, got executed an illegal sale deed, for which these plaintiffs are not parties. The said sale deed is not binding on them. They are in joint possession of this property also.

Late B.V. Bhadrappa also left behind Bank deposits lying in S.B. Account No. 4264 at Syndicate Bank, N.R. Colony Branch, Bangalore and also in S.B. Account No. 17752 in Canara Bank, D.V.G. Road Branch, Basavanagudi, Bangalore. The plaintiffs have got 1/6th share each in the amounts lying in the above said Bank accounts. In addition to this, late B.V. Bhadrappa has left behind gold ornaments worth Rs. One lakh in which also they are entitled to 1/6th share.

In spite of repeated reminders the defendants did not effect partition and give their share. On 27-04-99 they got issued a legal notice to the defendants calling upon them to effect partition and give separate possession of their respective shares. On receipt of the said legal notice, they have sent an untenable reply on 06-05-99. Fourth defendant has issued a separate reply admitting the claim of the plaintiffs. As partition was denied, they were constrained to file a suit for partition and separate possession of their 1/6th share in all the suit schedule properties.

After service of summons, the first defendant entered appearance through his Counsel and filed a written statement. The relationship between the parties was admitted, but he denied all of them constituted a Joint Hindu family. It was specifically denied that the schedule properties are not the self acquired properties of late B.V. Bhadrappa. It is also denied that B.V. Bhadrappa died intestate and that all the suit schedule properties are his self acquired properties. The allegation that the plaintiffs are in joint possession with the defendants in respect of schedule properties is false. The allegation that the first defendant is the ''manager'' of the Hindu Joint Family was also denied.

In so far as ''A'' schedule property is concerned, it was submitted that at the first instance the said property was allotted in favour of first defendant under a registered release deed dt. 10-10-1990. In pursuance of the said release deed, the BDA has executed a registered sale deed on 25-02-91. In the said registered sale deed, instead of typing the name of the first defendant, the name of Sri. B.V. Bhadrappa was typed. When the said mistake was brought to the notice of the BDA, the BDA executed a registered rectification deed dt. 26-04-91 in favour of the first defendant, rectifying the said mistake. After the execution of the said document, khata in respect of ''A'' schedule property was transferred in the name of the first defendant. He has paid upto date taxes in respect of the said property. He is in possession and enjoyment of the property. Therefore, ''A'' schedule property is the self acquired property of the first defendant.

The said facts are all within the knowledge of the plaintiffs as well as other defendants. Only after late B.V. Bhadrappa made representations to the BDA about his financial problems and releasing his limited rights over the property, the BDA agreed to transfer and convey the same in favour of the first defendant who had offered to purchase the same directly from the BDA after raising loan from his employer i.e. Union Bank of India for the said purpose. After considering the representation of Sri. B.V. Bhadrappa on humanitarian grounds, the BDA conveyed ''A'' schedule property in favour of the first defendant. Subsequently, BDA executed registered sale deed and the rectification deed. The first defendant has also mortgaged the said property to his employer, from whom he has taken loan to purchase the property. On the day of purchase, the first defendant was in possession and enjoyment of the property as the absolute owner thereon. The entire sale consideration in respect of ''A'' schedule property is paid by the first defendant. There was no contribution of any kind either from his father late B.V. Bhadrappa or any other family members. Therefore the allegation that ''A'' schedule property is a joint family property of plaintiffs and defendants was denied. The first defendant out of his own earnings and after purchase has constructed a residential house thereon by mortgaging the same in favour of his employer and also by raising hand loans from friends and relatives. There is no contribution of any funds either from his father late B.V. Bhadrappa, who was himself in financial distress being a retired Government servant or any of the family members of the other defendants. Hence, the said property is the self acquired property of the first defendant. Neither the plaintiffs nor other defendants have got any right, title, claim or interest in the said property.

The second plaintiff herein got married during October, 1986, during the life time of their father and severed family ties with the other members of the family. From the date of marriage, she is separately residing with her husband. The first plaintiff also got married on 18-11-93, just a week after the death of her father. She has also severed her ties with the family. The second defendant is the eldest sister of the first defendant. She also got married long back and she is also living separately with her family. Fourth defendant also got married long back and he is also residing separately with his family. Hence, there was no joint family status either of the plaintiffs or the defendants at any point of time or any contribution was made by any of the parties for joint family funds and the first defendant never acted as a ''kartha'' of the joint family as he was also residing separately with his family and being employed, was serving in different places. Neither the ''A'' schedule property nor the other suit schedule properties were taken into joint family pool at any point of time, either during the life time of Sri. B.V. Bhadrappa or after the death of Sri. B.V. Bhadrappa. After receipt of legal notice, a suitable reply has been sent.

In so far as ''B'' schedule property is concerned, it was acquired by Sri. B.V. Bhadrappa during his life time. He was in possession and enjoyment of the same. He has made a will in favour of his wife Smt. B. Shuklambike and the first defendant. After the death of B.V. Bhadrappa on 08-11-93, defendants 1 and 3 have jointly succeeded to the said property. They are in joint possession and enjoyment of the same as co-owners. None of the plaintiffs have any right over the property. The said property is situated in Mysore, beyond the territorial jurisdiction of this Court. Hence, the plaintiffs claim in respect of the said property cannot be adjudicated by the Court in Bangalore.

In so far as C'' schedule property is concerned, it belongs to their mother Smt. B. Shuklambike. She acquired the same under a registered sale deed dt. 24-02-77 from Kalyan Co-operative Housing Society Ltd. for valuable consideration. Since the third defendant offered to sell the said property, the second defendant being her daughter, being also gainfully employed as an Assistant Mistress, offered to purchase the same for valuable consideration. Hence, third defendant sold the same in favour of the second defendant under a registered sale deed dt. 27-01-99. In pursuance of the same, khata of the property was transferred to her name. She has paid taxes. She is in possession and enjoyment of the said property as the absolute owner thereof. Therefore, neither the plaintiffs nor other defendants have got any right, title or claim over the said property.

In so far as ''D'' schedule property is concerned, he is not aware of any of the Bank deposits lying in S.B. Account. Therefore he sought for dismissal of the suit.

Defendants 2 and 3 have filed a common written statement. They do admit the relationship set out by the plaintiffs in the plaint. They contend, ''A'' schedule property is the self acquired property of defendant No. 1. ''C'' schedule property was allotted to defendant No. 3 by Kalyan Co-operative Housing Society Ltd. and possession certificate dt. 21-01-84 was issued. Subsequently, registered sale deed dt. 24-02-77 was executed in favour of defendant No. 3. Thereafter, defendant No. 3 had sold the said property in favour of defendant No. 2 under a registered sale deed dt. 27-01-99 and she has been put in possession and enjoyment of the said property. Thus, suit ''C'' schedule property is the self acquired property of the defendant No. 2 and she is the absolute owner in possession and enjoyment of the said property. They have denied the existence of ''D'' schedule property. They have adopted and reiterated all the statements made by the first defendant and they also sought for dismissal of the suit.

The fourth defendant has filed separate written statement. He has admitted the relationship between the parties. He is supporting the case of the plaintiffs. He also prays for a decree granting him his legitimate share in the suit schedule properties and he paid Court fee on the written statement.

The trial Court has framed the following issues:

"1. Do the plaintiffs prove that suit properties are the joint family properties as alleged?

Does defendant No. 1 prove that ''A'' schedule property was allotted to B.V. Bhadrappa?

Does defendant No. 1 prove that the will executed by B.V. Bhadrappa?

Does defendant No. 1 prove that Court fee paid is insufficient?

Do the defendants 1 to 3 prove that ''A'' schedule property was later acquired by defendant No. 1?

Do the defendants 2 and 3 prove that ''B'' schedule property is the self-acquired property of late B.V. Bhadrappa?

Do the defendants 1 to 3 prove that ''C'' schedule property was allotted to defendant No. 3 by Kalyan Co-operative Housing Society?

Do the defendants 2 and 3 prove that defendant No. 2 has become the absolute owner of ''C'' schedule property under the Sale Deed dated 27.1.1999 as contended?

Do the defendants 2 and 3 prove that ''D'' schedule property is not in existence?

What order or decree?"

The plaintiffs in order to substantiate their claim, examined the first plaintiff - Smt. Shylaja as P.W.1, the first L.R. of the second plaintiff - Sri. B. Shanmukha as P.W.2 and one Sri. Ganesh Singh Mokashi - Secretary of Kalyan Co-operative Housing Society Ltd. as P.W.3 and produced 11 documents in support of their claim, which were marked as Exs. P. 1 to P. 11. On behalf of the defendants, the first defendant was examined as D.W.1, second defendant was examined as D.W.2, the brother of the third defendant by name Shivashankar was examined as D.W.3 and the fourth defendant was examined as D.W.4. They also produced 14 documents which were marked as Exs.D.1 toD.14.

The trial Court, on appreciation of the aforesaid oral and documentary evidence held, though ''A'' schedule property was allotted earlier in the name of late B.V. Bhadrappa, it is the defendant No. 1 who paid the sale consideration amount to the BDA and it is he who had constructed building in the suit schedule ''A'' property by raising loan and in view of Exs.P.1 to P.3, he had become the absolute owner of the same. Therefore it was held, defendants 1 to 3 have established that ''A'' schedule property is the self acquired property of the first defendant in which the plaintiffs have no right. ''B'' schedule property is the self acquired property of late B.V. Bhadrappa. Though a will was set up claiming ''B'' schedule property by defendants 1 and 3, the will was not registered. It was not proved in accordance with law and therefore in the said property it held that all the parties are entitled to a share. In so far as C'' schedule property is concerned, late B.V. Bhadrappa was a member of Kalyan Cooperative Housing Society Ltd. He nominated his wife, the third defendant as his nominee. Therefore on payment of sale consideration, the site was allotted in the name of defendant No. 3 and she had also paid part consideration amount and on 01-03-77 the Society executed a registered sale deed directly transferring the suit schedule C'' property in the name of defendant No. 3. Possession certificate was also issued in the name of the third defendant. Possession was also delivered to her. Even if late B.V. Bhadrappa had paid the entire sale consideration to the Society, but during the life time of B.V. Bhadrappa, the Society had transferred the suit C'' schedule property in the name of defendant No. 3 by executing a registered sale deed, it could be said that Bhadrappa himself purchased the property for his wife and therefore, she became the absolute owner thereof. Then they referred to Sec. 3(2) of Benami Transactions (Prohibition) Act and held, the allotment was in favour of defendant No. 3 and she was the absolute owner thereof. The third defendant under a registered sale deed dt. 27-01-99 has transferred the C'' schedule property in the name of defendant No. 2 and thus, she became the absolute owner and it was her self acquired property. However, it was held, in so far as ''D'' schedule properties are concerned, all the parties are entitled to a share therein and thus, the plaintiffs suit was partly decreed. Ultimately, the trial Court held, the first defendant after taking suit ''A'' schedule property, has come out from the family and therefore, he is not entitled to any share in ''B'' and ''D'' schedule properties and granted 1/5th share to each of the plaintiffs as well as fourth defendant. The suit in respect of ''A'' schedule and C'' schedule property was dismissed.

Aggrieved by the said judgment and decree, both the plaintiffs and the fourth defendant have preferred these two appeals.

The learned Counsel for the plaintiffs assailing the impugned judgment and decree contended, the evidence on record clearly establishes, ''A'' schedule property was allotted by the erstwhile CITB in favour of the first defendant. The entire sale consideration was paid by him. Subsequently, BDA has executed a registered sale deed in his name. Though the first defendant and his father executed a registered release deed, as plaintiffs and other defendants are not parties to the same, they are not bound by the said sale deed to any extent. By acting on the said document because of no objection given by others, the BDA has executed a sale deed in favour of the first defendant. It does not take away the rights they possessed in the said property. Similarly, the Rectification Deed executed by the BDA in favour of the first defendant also in no way affects the interest of other parties to the suit. The trial Court has not properly appreciated these aspects and erred in holding that the first defendant is the absolute owner of ''A'' schedule property and taking the said property, he has gone out of the family and therefore the other members have no right in the said property.

Similarly, in so far as C'' schedule property is concerned, it is late B.V. Bhadrappa who was a member of the Society and paid the consideration for allotment of the site, who had recommended his wife as a nominee, and on his request, as he was already holding a site allotted to him by the CITB, he got the allotment made in the name of his wife; subsequently, sale deed was also executed. But in the light of these admitted facts, it is not the property of the third defendant. On the death of B.V. Bhadrappa, all the legal heirs are entitled to the said property. The sale deed executed by the third defendant in favour of second defendant is not binding on others and no consideration was paid under the document and therefore, the plaintiffs are entitled to their legitimate share in the said property. Therefore, he contends, the judgment and decree of the trial Court denying their share in ''A'' and C'' schedule properties requires to be set aside and they should be given equal share. Fourth defendant who has preferred the connected appeal supported the said argument and submitted, fourth defendant is also entitled to equal share in respect of the said two properties.

The learned Senior Counsel appearing for the first defendant submitted, the undisputed documents on record clearly establish, ''A'' schedule property was allotted to B.V. Bhadrappa and was his self acquired property. The relinquishment deed entered into between Bhadrappa and the first defendant, if properly construed, would mean that, whatever right Bhadrappa had in ''A'' schedule property, he conveyed the same to the first defendant. Recognizing the said release deed coupled with the joint affidavit given by the plaintiffs and other sharers, the BDA executed a sale deed in favour of the first defendant. There was a mistake. Therefore, a Rectification Deed came to be executed. This arrangement was necessary because Bhadrappa had no funds to put up construction during the lease period, on account of which default, the allotment could have been cancelled. At that stage, the first defendant stepped in, obtained a sanctioned plan, invested about Rs. 10.50 lakhs and put up construction and saved the property. It is in consideration of the same, the aforesaid registered document was executed. The plaintiffs and others gave their consent. They stood by when construction was put up. They have not challenged the relinquishment deed, the sale deed, the rectification deed, nor objected to the construction. They also did not raise any objection when the plan was sanctioned in the name of the first defendant. Thus, the first defendant became the absolute owner. He has put up construction, khata was made out in his name, he has paid taxes and he is enjoying the property to the total exclusion of others. Therefore, ''A'' schedule property is the self acquired property of the first defendant, in which others have no right. Even otherwise, the plaintiffs are estopped from claiming any right in the ''A'' schedule property.

The learned Counsel appearing for the second defendant submitted, admittedly, the Society allotted a site in favour of the third defendant. The entire consideration was paid by the third defendant. The sale deed came to be executed in her favour. Although the second defendant paid a sum of Rs. 3,00,000/- as consideration and obtained a registered sale deed in her favour, subsequently khata has been made over in her name, she has been paying tax and she is in possession of the site to the total exclusion of others and thus it is her self acquired property in which others have no right. The trial Court has accepted his case and dismissed the suit of the plaintiff. It is based on legal evidence and no case for interference is made out.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as follows:

"(a) Whether the finding recorded by the trial Court that ''A'' schedule property is the self acquired property of the first defendant and therefore the plaintiffs and other defendants have no share in the said property is sustainable?

(b) Whether the finding of the trial Court that C'' schedule property is the self acquired property of first defendant from whom the second defendant has acquired title under a registered sale deed, thereby it has become her self acquired property in which the plaintiffs and other defendants have no right is correct?"

Point No. 1:

The evidence on record clearly establishes, the ''A'' schedule property which was a vacant site, earlier belonged to erstwhile CITB, was allotted to Sri. B.V. Bhadrappa on 17-03-73. After the payment of the amounts demanded, a lease-cum-sale agreement was executed by the CITB in favour of B.V. Bhadrappa under a registered document dt. 25-06-74. On 10-10-90 as per Ex. P. 3 - a deed of release came to be executed between the first defendant and B.V. Bhadrappa. This document is not disputed. The relevant clause in the said document reads as under:

"(1) Whereas the releaser and the releasee of the first and second part, above named, are the son and father respectively, who form the Joint Hindu Family and are members of Hindu Undivided Family.

(2) Whereas the joint family is possessed of movable and immovable properties held in common by the co-parceners, including the schedule vacant site measuring East to West 61'' 6" and North to South 40'' bearing BDA site No. 640 in Koramangala VI Block, at Bangalore, more fully described in the schedule in which the releaser has an undivided interest in the joint family property.

(3) Whereas the releaser on the first part above named is desirous of separating himself from the joint family and intended hereby to claim and take the site bearing No. 640 in Koramangala VI Block, at Bangalore, measuring East to West 61'' 6" and North to South 40'' more fully described in the schedule below in lieu of his share by way of single share partition free from any encumbrance whatsoever."

The aforesaid recital explicitly makes it clear, there exists a Hindu Undivided Family of which the first defendant and others were the members.

Schedule property was a joint family property. The first defendant wanted to separate himself from the joint family and therefore towards his share, ''A'' schedule property was given. The first defendant who was examined as D.W.1 in the case, in his examination-in-chief has categorically stated, the property being the joint family property, which was vested with him, he has to release all his right, title and interest in respect of other family properties and on releasing the right in respect of schedule ''A'' property by his father, he can get the title to the property and the same was also the advice of the BDA. Accordingly, a release deed dt. 10-10-90 was executed, which is Ex. P.3. The schedule property was allotted to him as his share, since he has released himself from the joint family status. Therefore, from this evidence on record, it is clearly established, there exists a Hindu Undivided Family. ''A'' schedule property was a joint family property and while executing the release deed, the father relinquished his interest in the ''A'' schedule property in favour of the first defendant. In turn, the first defendant relinquished all his interest in other joint family properties.

It is to be noticed, the joint family did not consist of the father and the first defendant - son alone. The joint family on the date of the release deed consisted of the father, the first defendant - his first son, the fourth defendant - the second son, third defendant - wife of B.V. Bhadrappa and three daughters i.e. plaintiffs 1, 2 and defendant No. 2. None of the other members of the family have executed a relinquishment deed. They are not parties to the same. If the ''A'' schedule property is to be construed as the self acquired property of B.V. Bhadrappa, the question of his executing the relinquishment deed, releasing his interest in the said property in favour of his son who has no right in the said property would not arise. Even if it is his self acquired property, as seen from the evidence on record, the conduct of the parties, he treated it as joint family property, in which event only he can relinquish his interest in favour of the first defendant. Therefore the said document which if construed properly, only means ''A'' schedule property was a joint family property, in which first defendant had a share, the father also had a share and the father has relinquished his interest in the property in favour of the first defendant. Other sharers are neither parties to the said document, nor they have relinquished their interest. Therefore, all that the first defendant can claim in the said property is his share and the share of his father. He has not acquired the shares of the other members of the family. It is in this background, we have to see the subsequent events, notwithstanding this release deed, the BDA executed a registered sale deed as per Ex. P.1 dt. 25-02-91 in favour of B.V. Bhadrappa. According to the first defendant, it was a mistake and therefore BDA realizing the mistake, executed a rectification deed dt. 26-04-91 in favour of the first defendant.

Once this property was treated as a joint family property by Bhadrappa, even if the sale deed is executed in his name, in law, it makes no difference. Though the sale deed stands in the name of B.V. Bhadrappa, as it is a joint family property, all the members of the joint family have a share in the said property. Similarly, if by a Rectification Deed, B.V. Bhadrappa''s name is removed and first defendant''s name is inserted, again in law, it makes no difference. The property is the joint family property belongs to all the members of the family. Therefore the finding of the trial Court that by execution of the release deed, B.V. Bhadrappa lost his interest in the property and the first defendant became absolute owner, is contrary to law. Similarly, an affidavit is filed before the sale deed is obtained in the name of the first defendant. Copy of the affidavit is produced as Ex. D.1. A reading of the said joint affidavit filed by Smt. B. Shuklambike, Smt. Sandhya Devi, Smt. B. Shailaja and Sri. B. Vighneshwar i.e. defendant No. 3, plaintiff No. 2, plaintiff No. 1 and first defendant, discloses that, they have sworn to the fact that B.V. Bhadrappa has executed a family release deed in favour of the first defendant, transferring ''A'' schedule property which is allotted to him in favour of first defendant. Father has not left any will. Therefore, they have no objection in the ''A'' schedule property which was transferred in favour of the first defendant. No where in the said affidavit they have given up their right to ''A'' schedule property. As the original allotment was in the name of the father, if the sale deed is to be executed in the name of his nominee - his son, because other children of B.V. Bhadrappa had a share in the property, their consent was necessary. This affidavit is nothing but a consent given by other sharers to the BDA to execute the sale deed in favour of the first defendant instead of their father. They never intended to give up the right to the property and the trial Court has miserably failed to appreciate this document and has construed this document as if they are giving up their right. There is totally no application of mind by the trial Court to the contents of Ex. D.1. It was contended, because of the affidavit the plaintiffs are estopped from claiming any right and in support of their contention reliance was placed on the judgment of the Apex Court in the case of B.L. Sreedhar and Others Vs. K.M. Munireddy (Dead) and Others, .

"18. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.

Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma where vishwanatha Sastri, J. observed: (AIR p.405, para7)

"Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine..."

Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded form denying it."

There cannot be any quarrel with the said legal proposition.

In respect of a joint family property, every member of a joint family acquires interest in the property by birth. The only way that right could be extinguished is, by way of a partition in which one member can give up his share in favour of another member and in turn acquire interest in another property. Partition is not a transfer. It is a readjustment of shares among members of joint family, otherwise property will be held jointly. If it is done orally, it does not require registration. If it is reduced into writing, it is compulsorily registrable document. In the instant case, admittedly, there is no partition pleaded by any of the parties. There is no partition deed evidencing any partition. On the contrary, the specific case is, under a relinquishment deed - Ex. P.3, first defendant acquired absolute title. Relinquishment is only by the father in favour of one of his children. Other members of the family have not relinquished their interest in the ''A'' schedule property. Such a relinquishment of their share which is more than Rs. 100/- is possible only by execution of a registered relinquishment deed. Admittedly, there is no relinquishment deed executed by other members of the family. Therefore even if the other members intended to relinquish by filing affidavit swearing to the fact that they have relinquished or they do not raise any objection to the document executed, to which they are not parties, such an act would act as an estoppel. Therefore the said contention has no merit and requires to be rejected.

Reliance was placed on the judgment of the Apex Court in the case of Kale and Others Vs. Deputy Director of Consolidation and Others, , where dealing with the case of family settlement, it was held, in the facts and circumstances of the case, there can be no doubt that even if the family settlement is not registered, it would operate as a complete estoppel against respondents 4 and 5. That is a case where under a family settlement, all the persons who had right in the property had agreed for partition and separate possession. They were signatories to the said document. But that document was not registered. It is in that context it was held, that an unregistered document has no legal vein between the parties, as they have affixed their signatures, it would operate as an estoppel. In the instant case, except the father and son, other members are not parties to the relinquishment deed. In so far as the affidavit is concerned, all that they have said is, they have no objection for transferring the property in the name of the son in the place of the father. It is only when the property is transferred legally by execution of a registered document, they would loose their right. They did not relinquish their right. They did not say in the affidavit, first defendant is exclusively entitled to the property, nor their right to the property stood extinguished. Therefore, the said judgment has no application to the facts of this case. Therefore, in the light of the documentary evidence, which is placed on record, which is not in dispute and the specific stand taken by the first defendant in his evidence which is supported by the contents of the Rectification Deed, which is not in dispute, there existed a Hindu Undivided Family. Though the property was allotted by the BDA in favour of the father, he relinquished it in favour of his son. Therefore, the relinquishment deed could be valid to the extent of the share of the father. By virtue of the said document, in ''A'' schedule property, first defendant would be entitled to two shares as against the other sharers. It does not become his self acquired property. It does not cease to be a joint family property, nor other members right to the share is extinguished in any of these documents. It is on record that the first defendant got the plan sanctioned, raised a loan of Rs. 10.50 lakhs from Union Bank of India, where he was working and he has put up a two storey building and he has let out the same to the tenants. Probably under the impression that he has become the absolute owner, he has invested his hard earned money in putting up the said structure. From the date of construction, he has been exclusively enjoying the same. But nevertheless, a feeble attempt was made by the plaintiffs to contend, they have also contributed the amounts for construction. Absolutely there is no acceptable evidence, placed on record, in support of their contention. On the contrary, the first defendant has produced documentary evidence on record, which is also not disputed and therefore the construction put up on the ''A'' schedule property exclusively belongs to the first defendant, whereas the site belongs to the joint family, in which he can only have two shares as against one share of the others. While calculating the shares to each of the members in the final decree proceedings, this investment made by the first defendant for construction of a building has to be taken into consideration by the trial Court and appropriate orders have to be passed at the time of effecting partition.

Point No. 2:

The evidence on record discloses, B.V. Bhadrappa was a member of the Kalyan Housing Co-operative Society. Ex. P. 12 is a ledger showing the membership share amount and dividends. P.W.3 -Secretary of the said Society has been examined, who has identified the said ledger as Ex. P. 12. He admits that he was not in the management of the Society on the day the entries were made. But it is not in dispute that this book is maintained by the Society in the normal course of its business. At page 75, the name of the member is shown as B.V. Bhadrappa, Senior Assistant Director of Public Instruction, New Public Office, Bangalore - 1. Father''s name is shown as B.Veerabhadrappa. Nominee is shown as Smt. B. Shuklambike and the name of the daughter Kum. B. Girijamba is also shown in the book. His membership number is 625. His membership was taken on 29-03-70. He was allotted one share and the share certificate is numbered as 624. He paid a sum a sum of Rs. 100 on 29-01-70 under receipt No. 628. Subsequently, on 04-03-71 as per receipt No. 1241 he paid Rs. 500 towards advance of purchase of a site. On 11-07-72, as per receipt No. 1775, another sum of Rs. 1,000/-, again on 08-08-72 as per receipt No. 1822 he paid a sum of Rs. 1,035/-, on 06-0x-74 as per receipt No. 2479 he paid a sum of Rs. 1,500/-. Thus, in all he has paid Rs. 4,035/-. These receipts are marked in the case as Exs. P. 13, 14 and 16. Again on 22-02-77 as per receipt No. 2874 he paid a sum of Rs. 300/-. It shows, the site value of site measuring 30 x 50 feet, bearing No. 179 is Rs. 4,335/-. There is no balance payable. It is not in dispute that the Society did not execute a sale deed in favour of B.V. Bhadrappa, but on his request, it was executed in the name of his wife Smt. B.Shuklambike. There is no evidence on record to show Shuklambike had any independent income, nor any evidence to show, she paid the said consideration. Though a vague attempt is made to the effect that B.Shuklambike''s father was an IPS officer, well placed in life and they were giving monies and gifts from time to time, except a bald assertion, nothing is produced to substantiate the case. In fact, if the evidence is to be believed that the IPS officer is now without a roof and he is taken care of by an old age home. Therefore, if the husband who was a Government official, who had already been allotted a site by the CITB and during the relevant period there was a bar for a Government official to take two sites, thought it fit to take the sale deed in the name of his wife, it cannot be found fault with. But at the same time, the said site was not taken for the benefit of his wife. As B.V. Bhadrappa had paid the entire consideration for the purchase of the site to the Society, at his request, the sale deed was executed in the name of his wife. It cannot be said that it is her self acquired property. The second defendant pays Rs. 3 lakhs and obtains a sale deed from her mother. The sale deed receipts for a sum of Rs. 3 lakhs was paid by cash in the presence of witness at the time of registration. One such witness is the first defendant -her brother. In his evidence, he has stated, he did not see any money at the time of execution of the sale deed. It is the case of the second defendant that she is working as a teacher. She is also an income tax assessee. In the evidence she has stated, Rs. 3 lakhs was paid before the execution of the sale deed, whereas the sale deed says Rs. 3 lakhs was paid at the time of registration before the witness at the Sub-Registrars office. Therefore, it is difficult to believe that she paid Rs. 3 lakhs in cash to her mother and obtained the sale deed. Unfortunately, the evidence on record again shows, though the third defendant was the wife of a Class I Gazetted Officer and she had two sons and two daughters, she is now staying in an old age home. If Rs. 3 lakhs was paid by the second defendant to the third defendant, probably such a situation would not have been arisen for her. Be that as it may, the registered sale deed is executed by the mother in favour of the daughter, at the most that sale deed may convey the mother''s right in the property to the daughter. Therefore, the second defendant would have one share of hers and another share of her mothers i.e. two shares as against one share on her part. This aspect has been completely missed by the trial Court. It proceeds on the assumption, it is the self acquired property of the mother, mother has executed sale deed in favour of her daughter for valuable consideration and therefore she has become the owner, in as much as the other have no right. As pointed out above, though the sale deed was taken in the name of the third defendant, this property belonged to her husband who was a member of the joint family and all of them were joint family members and there was no partition amongst them and only the first defendant got out of the family. In these circumstances, now that the father is dead, at a partition, mother is also entitled to a share, and therefore the plaintiffs are entitled to their legitimate share in the ''C'' schedule property also.

In the light of the above discussions, the judgment and decree of the trial Court is unsustainable. Accordingly, it is hereby set aside. However, the shares have to be worked out as under.

Hence, we pass the following order:

Both the appeals are allowed.

The judgment and decree of the trial Court holding that ''A'' and ''C'' schedule properties are the self acquired properties of defendant No. 1 and defendant No. 2 are hereby set aside.

The suit of the plaintiffs is decreed holding that they are entitled to the following shares:

"(a) Plaintiffs 1, 2 and defendant No. 4 are entitled to 1/6th share each in all the suit schedule properties. Defendant No. 1 is entitled to 2/6th share in the ''A'' schedule property and 1/6th share in ''B'', ''C'' and ''D'' schedule properties.

(b) Second 2/6th share in C'' schedule property and 1/6th share in ''A'', ''B'' and ''D'' schedule properties.

(c) Defendant No. 3 is not entitled to any share in C'' schedule property. However, she is entitled to 1/6th in ''A'', ''B'' and ''D'' schedule properties."

The suit is decreed for mesne profits also and it has to be worked out in the final decree proceedings. However, it is to be made clear, while calculating the mesne profits, the final decree Court shall take note of the fact that the first defendant has invested the entire money for construction of the building which is put up therein and for that, he should be given proper credit.

Parties to bear their own cost.