(1.) THIS appeal is under Clause 15 of the Letters Patent against the judgment of krishnaswami Nayudu, J. in S. A. No. 1407 of 1946. That arose out of a suit filed by the appellants against the respondents for partition and separate possession of the suit properties. One Vappu Rowther was the owner of the properties, He died in 1936. He left behind him a daughter Savuravan Beevi through his predeceased first wife, his second wife, Zuleka Beevi and a son by her, the first respondent to the appeal. Zuleka Beevi died after the succession to the estate of Vappu Rowther opened. Savuravan Beevi died in 1944 leaving behind her, her children the appellants as her heirs. The appellants claim that their mother was entitled to a share in the properties as an heir of Vappu Rowther, that on the death of their mother they were entitled to the same. The defence of the first respondent was that Savuravan beevi even during the life-time of Vappu Rowther had executed a release Ex. B. 6 on 13-1-1936 relinquishing all her rights of inheritance in the properties of her father Vappu Rowther in consideration of a payment of Rs. 300. To secure that sum of Rs. 300 and as part of the same transaction Vappu Rowther is said to have executed a simple bond, Ex. B. 12 on the same date in favour of his daughter, Savuravan Beevi promising to pay her with interest at four kalams of paddy per cent per annum. The first respondent, therefore, pleaded that by virtue of the release and the benefit she obtained under Ex. B. 12 the appellants' mother had surrendered all her rights in the estate of her father and that she was also estopped from claiming a share. The first respondent further pleaded that he would be entitled to benefit under Section 43 of the Transfer of Property Act. Alternatively he claimed that in case the partition were to be granted, he should be compensated for improvements effected on the property, the debts of the estate which her discharged and the funeral expenses of Vappu Rowther incurred by him. The learned District Munsif negatived the contentions of the first respondent and held that the release was invalid and that the appellants would be entitled to a partition and separate possession of 7/24 share in the properties. He also hold that interest paid under Ex. B. 6 worked out at slightly more than the legitimate share of income to which Savuravan Beevi would be entitled and directed the defendants to refund a sum of Rs. 38/13/0 together with a sum of Rs. 50 which was received towards the principal of Ex. B. 12. The first respondent filed an appeal to the Sub-Court, Mayuram, against the preliminary decree for partition granted against him by the learned District Munsif. The learned Subordinate Judge agreed with the District Munsif and held that Ex. B. 6 was not valid, that Savuravan Beevi and her sons were not estopped from claiming partition and that the first respondent would not be entitled to the benefit of Section 43 of the Transfer of Property Act. He further held that the appellants should pay their share of improvements effected and the debts discharged by the first respondent which the learned Judge assessed at Rs. 596/7/3. In the result the preliminary decree for partition was confirmed subject to the modification that the appellants should pay a sum of Rs. 685/5/0 to the first respondent. Against that decree the first respondent filed a second appeal to this court. Krishnaswami Nayudu, J. , who heard the appeal held that the release deed Ex. B. 6 was invalid and that the appellants would not be estopped from claiming partition by reason of Section 115 of the Evidence Act. The learned Judge, however, held that apart from the rule of estoppel provided for in Section 115 of the Evidence Act there were other kinds of estoppel under which it could be held that a family arrangement was entered into by Savuravan Beevi with her father who was benefited by it and therefore, binding on the parries concerned. He, therefore, allowed the appeal and dismissed the suit and directed each party to bear their respective costs. The appellants have now filed the above appeal against the judgment of Krishnaswami Nayudu, J.
(2.) BEFORE considering the several contentions raised by the learned Advocate on either side it is necessary to set out the terms of Ex. B. 6. They are as follows :
(3.) THE first contention on behalf of the first respondent, which was accepted as sound by the learned Judge, was that Ex. B. 6 amounted to a family arrangement. In the written statement filed by the respondent no specific plea was taken that exs. B. 6 and B. 12 amounted to any family arrangement. The only contention was that it was a release and as a release it was valid to extinguish the releasor's rights of future inheritance. Ex. 6 was not an arrangement in the sense that any other member of the family got a benefit under it. There was neither a settlement nor any arrangement by Vappu Rowther as a result of Ex. B. 6. He continued as owner and died intestate. Reliance was placed on a decision reported in Latafat Husain v. Hidayat Husain, ILR 58 All 834 : (AIR 1936 All 573 ). In that case a Muhammadan gentleman created a wakf under which he appointed his wife as Muthavalli and constituted her children as beneficiaries. As part of the same transaction a deed of release was executed by the wife in favour of her husband under which she relinquished her claim to her dower and her contingent right of inheritance in her husband's estate. After the death of the settlor the wife filed a suit for partition. The learned Judges, while accepting the position that under the Mahomedan law a relinquishment or renunciation of a future right of inheritance was not in itself valid so as to bind the maker, in the sense that the estate passed to the person in whose favour the relinquishment is made, upheld the release on other grounds. A distinction was made by them between relinquishment in the nature of gift or transfer of a contingent right, and a mere agreement of contract not to claim the contingent right when the succession opened in future. In the former case they held that the relinquishment was void, but in the latter they held that it was valid. They further supported the relinquishment on the basis of estoppel and as a family arrangement. With all respect, we are unable to agree with the learned Judges who decided, ILR 58 All 834 : (AIR 1936 Alt 573), that a distinction can be made between a case of actual relinquishment of the chance of inheritance and a contract to relinquish it in future. In Jagannadha Raju v. Varapa lakshmi Narasimma, ILR 39 Mad 554 : (AIR 1916 Mad 579), it has been held that a contract for sale of expectancies is void in India under the provisions of Section 6 of the Transfer of Property Act and Section 23 of the Indian Contract Act. Tyabji, J. observed at p. 559 (of ILR Mad) : (at p. 581 of AIR):