ELUMALAI @ VENKATESAN & ANR versus M. KAMALA AND ORS. & ETC. on 25 January 2023

ELUMALAI @ VENKATESAN & ANR

v.

M. KAMALA AND ORS. & ETC.(Civil Appeal Nos. 521-522 of 2023)

JANUARY 25, 2023

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Release Deed – Effect of – Spes Successionis – Estoppel –Warding off, of estoppel by heirs of the person whose conductcreated the estoppel – Impropriety of – Dispute regarding self-acquired property of ‘S’ – ‘S’ had married twice – From the firstmarriage, a son ‘C’ was born, whose two children were the appellants– When one child of ‘C’ was minor and other was not born, heexecuted a release deed for relinquishing his share in the propertyfor valuable consideration in the year 1975 – It was also specifiedin the release deed that ‘C’ will not have any relation apart fromblood relation with ‘S’ – ‘C’ predeceased his father in the year 1978– Two children from the second marriage of ‘S’ filed suit for partitionfor self-acquired property of ‘S’ and contended to exclude thechildren from the first marriage of ‘S’ on the basis of the releasedeed – Trial court found the release deed to be null and void sinceit was executed by ‘C’, when his father was alive – Thus, the propertywas divided between the children from both the marriages equally– On appeal, the High Court found the release deed to be a validdocument and excluded the appellants – High Court held that therelease deed coupled with the consideration received by ‘C’ actedas an estoppel against the appellants – Appellants assailed the HighCourt judgment on two grounds – Firstly, ‘C’, the father ofappellants, at the time of the execution of release deed merely had aright as spes successionis, and, thus, the release deed had no effect– Secondly, the father being a natural guardian did not have thepower to bind the minor by a personal covenant – Held: On facts,the property in dispute was the self-acquired property of ‘S’ – Thus,

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Aat the time of execution of the release deed, ‘C’, the father of theappellants, did not possess any right in the property apart frombeing a spes successionis – Further, ‘S’, the father of ‘C’, paidvaluable consideration in order to secure the interest of the sonfrom the second marriage, who used to be ill – Release deed by aBspes successionis would be incapable to convey or relinquish anyinterest in the property – However, on facts, execution of the releasedeed relinquished every other right apart from being a blood relative– Additionally, the conduct accompanied by receipt of valuableconsideration estopped ‘C’, the father of appellants, from claimingCany right in the property – On the personal covenant, the limitationin s.8 of the Hindu Minority and Guardianship Act,1956 can onlybe applicable when the minor possessed any independent right inthe property – On facts, it was not even the case of the appellantsthat they had any such independent right – Thus, the release deedDcannot be interdicted as being a personal covenant by the naturalguardian which cannot bind a minor – Further contention that whenthe succession opened in 1988 on the death of their grandfather‘S’, appellants being sons of ‘C’, the predeceased son of ‘S’, formedpart of class-I heir category under the Hindu Succession Act, notacceptable – Appellants were claiming through their father ‘C’ andEcannot ward off the estoppel created by the conduct of ‘C’ underwhom they were claiming right in the property – Judgment of HighCourt accordingly affirmed –Hindu Succession Act, 1956 – HinduMinority and Guardianship Act, 1956 – s.8 – Transfer of PropertyAct, 1882 – s.6(a) – s.8.F

Transfer of Property Act, 1882 – s.6(a) – Spes successonis –Chance of an heir apparent succeeding to an estate, the chance ofa relation obtaining a legacy on the death of a kinsman or othermere possibility of a like nature – Held: Cannot be transferred – AGliving man has no heir – Equally, a person who may become theheir and entitled to succeed under the law upon the death of hisrelative would not have any right until succession to the estate isopened up – Unlike a co-parcener who acquires right to joint family

Conclusion

property by his mere birth, in regard to the separate property of theHindu, no such right exists – Transfer by an heir apparent beingmere spes successonis is ineffective to convey any right.

Estoppel – Effect of – Held: The effect of estoppel cannot bewarded off by persons claiming through the person whose conductgenerated the estoppel – The impact of estoppel applies irrespectiveof the personal law applicable to the party concerned – On facts,‘C’, having received valuable consideration and allowed his father‘S’ to proceed on the basis that the latter was free to deal with hisself-acquired property without the prospect of being haunted byany claim whatsoever as regards the property by ‘C’, a clear estoppelsprang into existence following the receipt of consideration by ‘C’– Estoppel would shut out in equity any claim otherwise either by‘C’ or his children, viz., the appellants.

Dismissing the appeals, the Court

HELD: 1. Section 6(a) of the Transfer of Property Act, 1882declares that a chance of an heir apparent succeeding to an estate,the chance of a relation obtaining a legacy on the death of a kinsmanor other mere possibility of a like nature cannot be transferred.A living man has no heir. Equally, a person who may become theheir and entitled to succeed under the law upon the death of hisrelative would not have any right until succession to the estate isopened up. When ‘S’, the father of ‘C’ was alive, ‘C’ had at besta spes successonis. Unlike a co-parcener who acquires right tojoint family property by his mere birth, in regard to the separateproperty of the Hindu, no such right exists. Thus, there can beno doubt that the Release Deed may not by itself have the effectof a transfer of the rights of ‘C’ in favour of either his father orthe minor son of his father from the second marriage.[Para 10][271-D-F]

2. The property in question was not the ancestral propertyof ‘C’. ‘C’ would have acquired rights over the same only if hisfather had died intestate. He was, thus, only a heir apparent.

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ATransfer by an heir apparent being mere spes successonis isineffective to convey any right. By the mere execution of ReleaseDeed, in other words, in the facts of this case, no transfer tookplace. This is for the simple reason that the transferor, namely,the father of the appellants did not have any right at all which heBcould transfer or relinquish. [Para 14][273-G-H]

3. ‘S’, the father of ‘C’ married twice. The first unionproduced ‘C’, the father of the appellants. Thereafter, ‘S’ marriedagain. It is after the second marriage and the birth of the childrenfrom the said wedlock that Release Deed came to be executedCon 12th November, 1975. It would appear that from the secondmarriage, a son was born who incidentally was ill and in whosefavour ‘C’, the father of the appellants executed the ReleaseDeed. The intention of ‘S’ would appear to have been to securethe interest of the son from the second marriage. He wished toDsecure his interest created under the second marriage and forwhich the father of the appellants who was his son from the firstmarriage was given some valuable consideration, which persuaded‘C’ to release all his rights in respect of property in question.The words in the ‘Release Deed’ that hereafter he did not haveEany other connection except blood relation appears to signify thatthe intention of ‘S’ was to deny any claim to ‘C’ in regard to theproperty. [Para 15][274-C-E]

4. Conjecturing that ‘C’ has survived his father and hisFsuccession had opened intestate in regard to the estate of hisfather, the conduct of executing the Release Deed though by itselfmay not have resulted in a lawful transfer, his conduct beingaccompanied by the receipt of consideration would have estopped‘C’. The very fact that C’s father did not execute any documentby way of Will only shows that he proceeded on the basis that theGbranch represented by ‘C’ was being cut off from inheritance fromthe property in question. [Para 16][274-F-G]

5.1. Section 6 of the Hindu Minority and Guardianship Act,1956, inter alia, declares that the father and, after him, the mother,shall, in the case of a boy or an unmarried girl, be the naturalguardians of the minor’s person as well as in respect of the minor’sproperty. However, the minor’s property would not include theundivided interest the minor has in the joint family property. Itis, thereafter, that Section 8 appears and it purports to delineatethe powers of a natural guardian. The powers of a natural guardian,in other words, relate either to the person or to the minor’sproperty or both. Section 8 purports to, inter alia, provide thatthe natural guardian would have the power to do all acts, whichare necessary or reasonable and proper for the benefit of theminor or realisation, protection or benefit of the minor’s estate.It is, thereafter, that the Law-Giver has interdicted the guardianfrom binding the minor by a personal covenant. [Para 20][275-G-H; 276-A-C]

5.2. In the facts of this case, it is the case of the appellants,that ‘C’, their father, himself did not have any right in the plaintschedule property. This is for the reason that being the separateproperty of ‘S’, ‘C’ did not have any right by birth. He himselfhad only, what is described a spec successionis within the meaningof Section 6(a) of the Transfer of Property Act. It is not even thecase of the appellants that they had any independent right in theplaint schedule property either at the time of their birth or at thetime when their father died or even when their grandfather ‘S’died in 1988. The right, which they claim, at the earliest point,can arise only by treating the property as the separate propertyof ‘S’ on his death within the meaning of Section 8 of the HinduSuccession Act. Therefore, one is unable to discard the deed ofrelease executed by ‘C’ in the year 1975 as a covenant within themeaning of Section 8 of the ‘1956 Act.’ [Para 21][276-D-F]

6. The appellants would not be in a position to claimimmunity from the operation of the Principle of Estoppel on thebasis of Section 8(a) of the Hindu Succession Act. If the principle ABC

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Ain Gulam Abbas case applies, then, despite the fact that what waspurported to be released by ‘C’, was a mere spec successonis orexpectation his conduct in transferring/releasing his rights forvaluable consideration, would give rise to an estoppel. The effectof the estoppel cannot be warded off by persons claiming throughBthe person whose conduct has generated the estoppel. Also thereis no merit at all in the attempt at drawing a distinction based onreligion. The principle of estoppel applies without such distinction.[Para 23][277-G-H; 278-A-B]

7. Having received valuable consideration and allowed hisCfather ‘S’ to proceed on the basis that he was free to deal with theproperty without the prospect of being haunted by any claimwhatsoever as regards the property by ‘C’, a clear estoppelsprang into existence following the receipt of consideration by‘C’. Estoppel would shut out in equity any claim otherwise eitherDby ‘C’ or his children, viz., the appellants. [Para 24][278-C-D]

Gullam Abbas v. Haji Kayam Ali and Others, AIR 1973SC 554 : [1973] 2 SCR 300 – held applicable.

Estoppel by Representation by Spencer Bower and TurnerE– referred to.

Case Law Reference

[1973] 2 SCR 300

held applicablePara 4

FCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 521-522 of 2023.

From the Judgment and Order dated 20-10-2016 of the High Courtof Judicature at Madras in AS Nos. 718/2009 and 883/2009.

GSiddharth Iyer, Rakesh R. Sharma, Rakesh K. Sharma, P. V.Yogeswaran, Advs. for the Appellants.

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Jayanth Muth Raj, Sr. Adv., Mrs. Malavika Jayanth, S.Gowthaman, Ms. M. Venmani, Advs. for the Respondents.

The Judgment of the Court was delivered by K.M. JOSEPH, J.

1. Leave granted.

2. One Shri Sengalani Chettiar was married to one Rukmini. Thesaid marriage produced a son, namely, Shri Chandran. The appellantsare the sons of Shri Chandran. Sengalani Chettiar married again thistime with one Smt. Kuppammal. From the second marriage SengalaniChettiar had 5 daughters and a son. The controversy in this case relatesto A-Schedule property in the suit for partition filed by two children outof the 6 children born to Sengelani Chettiar from his second marriage.The property in dispute was the self-acquired property of Shri SengalaniChettiar. In regard to the said property, Chandran,the father of theappellants had executed a Release Deed. The terms of the ReleaseDeed dated 12.11.1975, are as follows:

THIS DEED OF RELEASE is executed on the 12th day ofNovember, 1975 in favour of 1. C.Sengalani Chettiar, son ofSingara Chettiar, residing at No.144, Venkatachala Mudali StreetMeersapet, Mylapore, Chennai, 2. Sengalani Chettiar, as theguardian of his minor son, Vinayagarnurthy, aged about 2 years,this deed executed by S.Chandran, son of Sengalani Chettiar,residing at No.19, Santha Sahib Street, Meersapet, Mylapore,Chennai is as follows:

I am the son of your first wife. As I could not be with you, I hadreceived through the transfer of mortgage gold jewellery which isworth of Rs. 10,000/- and the materials of a value of Rs.5000 /-and releasing my share in respect of the house sites situate atManamathi Village, which belong to us and more particularlydescribed in the schedule hereunder, through this document onthis day. The mortgage amount of Rs.10,500 / - as against theabove said house site, shall be settled by you. Hereafter we donot have any other connection except blood relation.

In this manner I had execute this Deed of Release.

3. As destiny would have it, Shri Chandran passed away on09.12.1978. Sengalani Chettiar died on 19.01.1988. The second wife ofSengalani Chettiar, Smt. Kuppammal breathed her last on 25.08.2005.O.S. No.8173 of 2006 came to be filed by one Uma Ravi Chandran andVinayaga Murthy, who were, as already noticed, children of Sengalani

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AChettiar from his second marriage. Defendants 1 to 3 were the otherdaughters of Sengalani Chettiar from the second marriage. Theappellants were subsequently impleaded as defendants 4 and 5.Defendant No.6 came to be impleaded as such and he is the son of thedeceased daughter of Sengalani Chettiar from the second marriage.

B4. The case of the plaintiffs to exclude the appellants was basedon the Release Deed executed by the father of the appellants. The trialCourt however found that the Release Deed in question was a voiddocument for the reason that Chandran executed the Release Deed in1975 while his father Sengalani Chettiar was alive. It is found that theRelease Deed would not be a bar for the appellants to inherit the propertyCof their grandfather Sengalani Chettiar. The plaintiffs were only foundto be eligible to get only 2/7 share. Plaintiffs were accordingly given adecree of 2/7 share inter alia. The suit came to be dismissed as far as‘B’schedule property is concerned. Plaintiffs filed AS No.883 OF 2009.Defendants 1, 3 and 6 filed appeal AS No.718 of 2009. By the impugnedDjudgment the High court has allowed these appeals and found that theappellants were not entitled to claim any share in the property of thedeceased Sengalani Chettiar. The foundational premise for overturningthe decree of the trial court was furnished by the dicta laid down by this1court inGulam Abbas v. Haji Kayyam Ali and others. Briefly put, thepremise is that insofar as Shri Chandran executed a deed of ReleaseEhaving obtained consideration from his father, the appellants would standestopped from laying a claim to a share in A-Schedule property. Thecourt also noticed the death of the second plaintiff and found that thefirst plaintiff and her siblings namely, defendants 1 to 3 alone wouldentitled to succeed to the share of second plaintiff. In other words, afterFfinding that the plaintiffs D1 to D3 and D6 would be entitled to one-sixthshare each in A-Schedule property and in view of the death of the secondplaintiff, the first plaintiff and defendants 1 to 3 were found to get 5/24share and the 6[th] defendant was to get 4/24 share. It is feeling aggrievedby the denial of share in A-schedule property that the defendants 4 and5 are before this Court.G

5. Heard Shri Sidharth Iyer, learned counsel for the appellants,Shri Umashankar, learned counsel on behalf of the first plaintiff and ShriJayanth Muth Raj, learned senior counsel on behalf of defendant nos. 2and 6.

H1 AIR 1973 SC 554

6. Shri Sidharth Iyer, learned counsel for the appellants wouldcontend that the High Court erred in drawing support from GulamAbbas (supra). He would point out that the case arose underMohammadan Law and the principle laid down in the said judgmentcould not be employed to deprive the appellants of their share as Class-I heirs under Section 8 of the Hindu Succession Act, 1956. He would, infact, point out that the first appellant was hardly three years old in 1975when the Release Deed was executed. What is even more noteworthyis that the second appellant was not even born. The property being theseparate property of the grandfather of the appellants and the appellantsbeing the sons of the pre-deceased son of Sengalani Chettiar, underSection 8, the law vouchsafed shares to the appellants. Reference ismade to Section 6 of the Transfer of Property Act. He points out that in1975 when the Release Deed was executed, Shri Chandran, the fatherof the appellant, had a mere spes successionis. The mere expectationof succeeding in future could not form the subject matter of a legitimatetransfer. Therefore, the trial court is entirely right in ignoring the ReleaseDeed as a null and void document. In other words, when succession tothe estate of Sengalani Chettiar opened in the year 1988, the property inquestion stood in the name of Sengalani Chettiar and in terms of Section8, the appellants’ right to succeed to a legitimate share cannot bequestioned on the basis of the Release Deed. He would also point outthat the High court has overlooked the mandate of Section 8 of theHindu Minority and Guardianship Act, 1956. It is contended that ShriChandran, the father of the appellants could perhaps be treated as havingentered into a covenant with his father. The covenant, however, couldnot operate to bind the appellants in view of Section 8. He would furthersubmit that nothing prevented the grandfather of the appellants fromexecuting a Will or otherwise dealing with the property. He was consciousof the consequence of Shri Chandran dying intestate but yet he did notmake any safeguard known to law to eliminate the appellants fromsucceeding to the property. Based on the dates of the death of theirfather Shri Chandran in 1978 and the grandfather in 1988, it is contendedthat there is no scope for applying the doctrine of feeding the grantwithin the meaning of Section 43 of Transfer of Property Act.

7. Shri Jayanth Muth Raj, learned Senior Counsel appeared tosupport the appellants. He concedes that the support for the appellantsis a later development. In other words, originally, the clients of Shri AB

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AJayanth Muth Raj, one of whom is one of the daughters of SengalaniChettiar and the other Shri Babu, the Sixth defendant (the son of a pre-deceased daughter of Sengalani Chettiar) had contested the claim of theappellants. It would however appear that there has been a subsequentassignment in regard to the share of the appellants, made in favour ofthe clients of Shri Jayanth Muth Raj. This explains, apparently, theBsomersault and inevitable change in the stand of his clients. Shri JayanthMuth Raj would contend that the judgment of this court inGulab Abbas(supra) relied upon by the High Court involved facts based on which theprinciple of estoppel was applied. The facts of the instant case, however,did not warrant the principle of estoppel. He would contend that in theCcase of Gulam Abbas, the conduct of the co-heirs was taken intoconsideration by this Court to hold that they are estopped. On the otherhand, in this case he would contend that there was a stark contrast.There is no conduct attributed to the appellants. The children of SengalaniChettiar have not made out a case based on the principle of estoppel onthe basis of conduct by the co-heirs as was the position in the case inDGulam Abbas(supra). No doubt, in regard to the question as to whetherif estoppel did apply qua Shri Chandran, it could be invoked against theappellants to deprive them of their right as Class I heirs (being childrenof pre-deceased son), the learned Senior Counsel would proceed on thebasis that the property involved was a separate property of SengalaniEChettiar. He would fervently contend that the principle in Gulam Abbas(supra) was wrongly applied by the High Court. Shri Jayanth Muth Rajwould contend that this court may notice that the grandfather did notdeal with the property and it did show that he wanted the succession tothe property to take place in accordance with the mandate of Section 8of the Succession Act.F

8. Per contra, Shri Umashankar, learned counsel appearing onbehalf of first plaintiff and the other contesting respondents support thejudgment of the High Court. Learned counsel drew our attention to theterms of the Release deed. He pointed out that the court should bear inmind the intention of the parties. In the second marriage Sengalani ChettiarGhad a son. He was not mentally well. Parties wanted to protect theinterest of the son. This explained why the Release Deed is executed infavour of the son represented by grandfather of the appellants. This isapart from pointing out that Shri Chandran having received considerationand given up all his rights, it would not lie in the mouth of the appellantsHto stake a claim for succession to the property.

ANALYSIS

9. The property in question has been found to be the separateproperty of Sengalani Chettiar. He died in 1988. Sengalani Chettiar hadmarried twice. From his first marriage, was born Shri Chandran. ShriChandran pre-deceased his father in the year 1978. Being the childrenof the pre-deceased son, the appellants would ordinarily have inheritedthe share as decreed by the trial court in this case. The terms of theRelease Deed recites that Shri Chandran has released his share in respectof the property. It is also clear that the Relinquishment made by ShriChandran was based on his having received valuable consideration. ShriJayanth Muth Raj, learned Senior Counsel made an attempt to contendthat the Release Deed is about the property belonging to “us”. Nothingturns on the same and we are inclined to proceed on the basis of thefinding rendered by both the courts that the property was the self-acquiredproperty of Shri Sengalani Chettiar.

10. Section 6 of the Transfer of Property Act enumerates propertywhich can be transferred. It declares that property of any kind may betransferred except as otherwise provided by the Transfer of PropertyAct or by any other law for the time being in force. Section 6(a) declaresthat a chance of an heir apparent succeeding to an estate, the chance ofa relation obtaining a legacy on the death of a kinsman or other merepossibility of a like nature cannot be transferred. A living man has noheir. Equally, a person who may become the heir and entitled to succeedunder the law upon the death of his relative would not have any rightuntil succession to the estate is opened up. When Shri Sengalani Chettair,the father of Shri Chandran, was alive, Shri Chandran his son had atbest a spes successonis. Unlike a co-parcener who acquires right tojoint family property by his mere birth, in regard to the separate propertyof the Hindu, no such right exists. Thus, there can be no doubt that theRelease Deed may not by itself have the effect of a transfer of therights of Shri Chandran in favour of either his father or the minor son ofhis father from the second marriage.

11. What however remains to be seen is whether conduct of ShriChandran in executing the release deed and what is even more importantreceiving consideration for executing the Release Deed would result inthe creation of estoppel. Having regard to the equity of the matter, inshort, whether it is a case where the doctrine of equitable estoppel wouldhave prevented Shri Chandran from staking a claim if he had survived A

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Ahis father. What is the effect of the existence of estoppel as against ShriChandran if such estoppel is made out, as far as the claim of the appellantsis concerned? The further question would be what is the effect of Section8 of Hindu Minority and Guardianship Act.

12. Before we proceed to deal with the contentions, it is necessaryBto take a closer look at the facts of the case of Gulam Abbas(supra)and what has been laid down therein. In the said case the facts involvedwere as follows:

In that case, a Mohammadan died leaving behind 5 sons, a daughterand a widow as his heirs. Three of his sons did well in life. Their fatherChad incurred debts. At the time, when their father was staring at theprospect of being completely deprived of the property as a result of hisindebtedness, two of his sons came forward and they paid up the debt. Itcame with the price however. Two of his sons, namely the plaintiff andthe fourth defendant in the deeds acknowledged receipt of some cashand movable property as consideration for not claiming any rights inDfuture in the property. The words relevant in this regard are as follows:

“I have accordingly taken the things mentioned above as theequivalent of my share and I have out of free Will written this. Ihave no claim in the properties hereafter and if I put up a claim infuture to any of the properties I shall be proved false by thisEdocument. I shall have no objection to my father giving any of theproperties to my other brothers...... .....”

13. This court went on to approve the view taken by the HighCourt of Allahabad in AIR 1976 Allahabad 573. The court found asfollows:F

“…With due respect, we are unable to concur with the view ofthe Madras High Court that a renunciation of an expectancy, as apurported but legally ineffective transfer, is struck by Section 23of the Indian Contract Act. As it would be void as a transfer at allthere was no need to rely on Section 23, Contract Act. If thereGwas no “transfer” of property at all, which was the correct position,but a simple contract, which could only operate in future, it wascertainly not intended to bring about an immediate transfer whichwas all that the rule of Muslim law invalidated. The real questionwas whether, quite apart from any transfer or contract, thedeclarations in the deeds of purported relinquishment and receiptH

of valuable consideration could not be parts of a course at conductover a number of years which, taken as a whole, created a baragainst a successful assertion of a right to property when thatright actually came into being. An equitable estoppel operates, ifits elements are established, as a rule of evidence preventing theassertion of rights which may otherwise exist.

7. Sir Roland Wilson, in his “Anglo Mohamadan Law” (p. 260,para 208) states the position thus:

“For the sake of those readers who are familiar with the jointownership of father and son according to the most widely prevelantschool of Hindu Law, it is perhaps desirable to state explicitly thatin Mohammedan, as in Roman and English Law, nemo est heresviventis.........a living person has no heir. An heir apparent orpresumptive has no such reversionary interest as would enablehim to object to any sale or gift made by the owner in possession;See Abdul Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) whichwas followed in Hasan Ali, 11 All 456, (1889). The converse isalso true: a renunciation by an exepectant heir in the lifetime ofhis ancestor is not valid, or enforceable against him after the vestingof the inheritance.”

This is a correct statement, so far as it goes, of the law, becausea bare renunciation of expectation to inherit cannot bind theexpectant heir’s conduct in future. But, if the expectant heir goesfurther and receives consideration and so conducts himself as tomislead an owner into not making dispositions of his property intervivos the expectant heir could be debarred from setting up hisright when it does unquestionably vest in him. In other words, theprinciple of estoppel remains untouched by this statement.”

(Emphasis supplied)

14. The property, i.e., ‘A’ schedule, was not the ancestral propertyof Shri Chandran. Shri Chandran would have acquired rights over thesame only if his father had died intestate. He was, thus, only a heirapparent. Transfer by an heir apparent being mere spes successonis isineffective to convey any right. By the mere execution of Release Deed,in other words, in the facts of this case, no transfer took place. This isfor the simple reason that the transferor, namely, the father of theappellants did not have any right at all which he could transfer or relinquish.

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AHowever, if his conduct was such that he could be estopped then theexecution of the Release Deed would imperil his right and thereforecast an irremovable shadow on the claim of the appellants as well unlesswe find merit in other submissions of Shri Siddharth Iyer, learned counselfor the appellants.B15. The argument of the appellants and Shri Jayanth Muth Rajthat there is no evidence that the grandfather of the appellant acted onthe Release Deed and that he did not execute any deed on the basis ofthe Release Deed does not appeal to us. Shri Sengalani Chettiar marriedtwice. The first union produced the father of the appellants. Thereafter,he married again. It is after the second marriage and the birth of theCchildren from the said wedlock that Release Deed came to be executedon 12[th] November, 1975. It would appear that from the second marriage,a son was born who incidentally was ill and in whose favour the fatherof the appellants executed the Release Deed. The intention of SengalaniChettiar would appear to have been to secure the interest of the sonDfrom the second marriage. He wished to secure his interest createdunder the second marriage and for which the father of the appellantswho was his son from the first marriage was given some valuableconsideration, which persuaded Shri Chandran to release all his rights inrespect of property in question. The words in the ‘Release Deed’ thathereafter he did not have any other connection except blood relationEappears to signify that the intention of Shri Chettiar was to deny anyclaim to Shri Chandran in regard to the property. He apparently thoughtthat he achieved his goal and in law if the principle in Gulam Abbas(supra) is applied and Shri Chandran did not pre-decease his father, allwould have gone according to the plan of the parties.F

16. We are of the view that conjecturing that Shri Chandran hassurvived his father and his succession had opened intestate in regard tothe estate of his father, the conduct of executing the Release Deedthough by itself may not have resulted in a lawful transfer, his conductbeing accompanied by the receipt of consideration would have estoppedGShri Chandran. The very fact that Shri Chettiar did not execute anydocument by way of Will only shows that he proceeded on the basis thatthe branch represented by Shri Chandran was being cut off frominheritance from the property in question.

17. When we queried learned counsel for the plaintiff as to whyHno Release Deed was got executed from the children of Shri Chandran, viz., the appellants, learned Counsel responded by contending thatSengalani Chettiar, apparently, proceeded on his understanding of thelaw.

THE IMPACT OF SECTION 8 OF THE HINDU MINORITYAND GUARDIANSHIP ACT

18. Section 8 (1), (2) and (3) of the Hindu Minority and GuardianshipAct, 1956 (hereinafter referred to as, ‘the 1956 Act’), inter alia, reads asfollows:

“8. Powers of natural guardian. —

(1) The natural guardian of a Hindu minor has power, subject tothe provisions of this section, to do all acts which are necessaryor reasonable and proper for the benefit of the minor or for therealisation, protection or benefit of the minor’s estate; but theguardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permissionof the court,—

(a) mortgage or charge, or transfer by sale, gift, exchange orotherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding fiveyears or for a term extending more than one year beyond the dateon which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, incontravention of sub-section (1) or sub-section (2), is voidable atthe instance of the minor or by any person claiming under him.”

19. The appellants rely upon the prohibition against the naturalguardian of a Hindu minor, binding the minor by a personal covenant. Inview of the said embargo, the principle enunciated in Gulam Abaas(supra) would not apply it is contended. We would think that it is acontention, which may not pass muster on a proper interpretation ofSection 8.

20. Section 6 of the 1956 Act, inter alia, declares that the fatherand, after him, the mother, shall, in the case of a boy or an unmarried girl,be the natural guardians of the minor’s person as well as in respect ofthe minor’s property. However, the minor’s property would not includethe undivided interest the minor has in the joint family property. It is, A

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Athereafter, that Section 8 appears and it purports to delineate the powersof a natural guardian. The powers of a natural guardian, in other words,relate either to the person or to the minor’s property or both. Section 8purports to, inter alia, provide that the natural guardian would have thepower to do all acts, which are necessary or reasonable and proper forthe benefit of the minor or realisation, protection or benefit of the minor’sBestate. It is, thereafter, that the Law-Giver has interdicted the guardianfrom binding the minor by a personal covenant. In short, in order that wepour meaning into the words in question, the backdrop must be providedby the existence of the minor and who has a right to some property. If, inregard to the property of the minor, the natural guardians were to enterCinto a covenant, then, it may be open to the minor to invoke the prohibitionagainst the natural guardian, binding the minor by a personal covenant.

21. In the facts of this case, the case of the appellants may benoted. It is their case, that Shri Chandran, their father, himself did nothave any right in the plaint schedule property. This is for the reason thatDbeing the separate property of Shri Sengalani Chettair, Shri Chandrandid not have any right by birth. He himself had only, what is described aspec successionis within the meaning of Section 6(a) of the Transfer ofProperty Act. It is not even the case of the appellants that they had anyindependent right in the plaint schedule property either at the time oftheir birth or at the time when their father died or even when theirEgrandfather Shri Sengalani Chettair died in 1988. The right, which theyclaim, at the earliest point, can arise only by treating the property as theseparate property of Shri Sengalani Chettair on his death within themeaning of Section 8 of the Hindu Succession Act. Therefore, we areunable to discard the deed of release executed by their father Shri FChandran in the year 1975 as a covenant within the meaning of Section8 of the ‘1956 Act.’

22. As far as the argument of the appellants that the appellantswould have an independent right, when succession open to the estate ofShri Sengalani Chettair, when he died in 1988, in view of the fact that theGappellants are the children of the predeceased son, viz., Shri Chandran,who died on 09.12.1978, we are of the view that there is no merit in thesaid contention. It is true that under Section 8(a) of the Hindu SuccessionAct, 1956, property of a male Hindu, dying intestate, will devolve, firstly,upon the heirs, being the relatives specified in Class I of the Schedule.The son of a predeceased son, it is true, is a Class I heir. Therefore, itH

could be argued that since Shri Sengalani Chettair died intestate, a rightwas created in the property in favour of the appellants, being the childrenof the predeceased son. What estoppel brings about, however, ispreventing a party from setting up the right, which, but for the estoppel,he would have in the property. In this regard, we may notice the followingdiscussion under the caption ‘Death or disability of the representor’ (pages125-126) in the work Estoppel by Representation by Spencer Bowerand Turner:

“Death or disability of the representor

128. In case of the death, or the total or partial disability(whether by reason of insolvency, infancy, lunacy, coverture, orotherwise), of the representor at the time of the proceedings inwhich the question of estoppel is raised, the liability to the estoppel,speaking generally, devolves upon, or is transmitted to, the samepersons, in accordance with the same rules, and subject to thesame conditions, as the liability of such a representor to proceedingsfor the avoidance of a contract procured by the representation.

Where the representor has died between the date of therepresentation and the date of the raising of the estoppel, theexecutor or administrator, or (in case of title to, and estates in,land) the heir or devise, of the deceased representor is bound bythe representation to the same extent as the representor wouldhave been, and succeeds to all the burdens of estoppel in respectthereof to which, at the date of his decease, such representorwas subject…”

23. It will be noticed that the father of the appellants, by his conduct,being estopped, as found by us, is the fountainhead or the source of thetitle declared in Section 8(a) of the Hindu Succession Act. It is, in otherwords, only based on the relationship between Shri Chandran and theappellants, that the right under Section 8(a) of the Hindus SuccessionAct, purports to vest the right in the appellants. We would think, therefore,that appellants would also not be in a position to claim immunity from theoperation of the Principle of Estoppel on the basis of Section 8(a) of theHindu Succession Act. If the principle inGulam Abbas(supra) applies,then, despite the fact that what was purported to be released by ShriChandran, was a mere spec successonis or expectation his conduct intransferring/releasing his rights for valuable consideration, would give A

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Arise to an estoppel. The effect of the estoppel cannot be warded off bypersons claiming through the person whose conduct has generated theestoppel. We also find no merit at all in the attempt at drawing a distinctionbased on religion. The principle of estoppel applies without suchdistinction.

B24. The only further contention which remains to be dealt with isthat raised by Shri Jayanth Muth Raj, learned Counsel. He made anattempt to contend that the principle in Gulam Abbas(supra) may notbe available in view of the factual matrix. It is his case that in the saidcase, the brothers received a benefit and thereafter gave-up the rights,which, as it was found, they did not possess at the time. The position inCthis case, however, is not similar. We are of the view that this argumentignores the play of the facts. Having received valuable considerationand allowed his father Shri Sengalani Chettair to proceed on the basisthat he was free to deal with the property without the prospect of beinghaunted by any claim whatsoever as regards the property by ShriDChandran, a clear estoppel sprang into existence following the receipt ofconsideration by Shri Chandran. Estoppel would shut out in equity anyclaim otherwise either by Shri Chandran or his children, viz., theappellants.

In such circumstances, we find no merit in the appeals. TheEappeals will stand dismissed. Parties will bear their own costs.

Bibhuti Bhushan Bose(Assisted by : Shubhansh Thakur, LCRA)

Appeals dismissed.

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