The main legal point established in the judgment is the application of the principle of estoppel and the doctrine of election, which required the 2nd plaintiff to make an election as to whether she would take the gift or claim a share in her father's estate, and if she claims the share she will have to give up the gift, subject to her rights to the value of improvements, if any she has made in the property.

T. Chandrasekhara Menon, J.

1. Defendants 1 to 8 have filed this appeal from the Judgment and decree in O.S. No. 170 of 1972 in the Munsiff's Court, Karunagappally for partition and mesne profits for a period of three years prior to the suit in the estate left by one Noohu Kannu. Noohu Kannu died in 1962. The 1st plaintiff had claimed to be one of the widows of the said Noohu Kannu and the 2nd plaintiff is the daughter born to Noohu Kannu by the 1st plaintiff. The 1st plaintiff claimed 1/16th share and the 2nd plaintiff 7/120th share.

2. The suit was contested by the defendants. The 1st defendant is the 1st wife of deceased Noohu Kannu and defendants 2 to 8 are the sons by the 1st defendant. They contended that the 1st plaintiff is not the legally wedded wife of the deceased Noohu Kanuu and the 2nd plaintiff born in that unlawful wedlock is disentitled to inherit the estate left by Noohu Kannu. They further contended that the 1st plaintiff was not the wife of Noohu Kannu at the time of his death. Another contention raised was that the 2nd plaintiff agreed to the terms of the deed of gift dated 29th June 1960 executed by Noohu Kannu and the gift accepted by the 2nd plaintiff in lieu of her share in the other properties of her father which would debar her from claiming any share in the estate subsequently. A question of estoppel on the deed was said to arise. The defendants' contentions were overruled and the suit was decreed.

3. The Trial Court passed a preliminary decree for partition on the following terms:

(1) The plaintiffs were allowed to get partitioned 29/240 share of the plaint schedule properties (excluding 50 cents in item 6) with metes and bounds.

(2) The plaintiffs were allowed to realise 29/240 share of Rs. 300 (the profits derivable from the plaint schedule properties) for a period of 3 years till recovery of possession whichever is earlier.

(3) Actual division is left open to be decided in the final decree. The parties were at liberty to apply for the issue of a commission to effect division and other allied matters.

(4) The parties were directed to suffer their respective costs.

This decree was confirmed in appeal by the District Court of Quilon in A.S. No. 138 of 1973. In confirming the decree the court below said that to work out estoppel as defined in S.115 of the Evidence Act, there must have been a declaration, act or omission by the 2nd plaintiff intentionally leading her father to believe that after acceptance of the gift she will not be claiming a share in the properties of her father after his death. The court said that there was nothing to show that before making the gift Noohu Kannu mentioned to his daughter that he will make the gift only if she was prepared to give up her rights of future inheritance. There is no recital in the document that he made such a stipulation and that the donee had accepted the same. It is also not stated in the deed that the gift was made subject to this condition. In the earlier part of the document a gift was unconditionally made. Subsequent part on which reliance is placed by the defendants, according to the learned District Judge, is more in the nature of a pious wish entered after the operative portion of the document. This recital states:

Malayalam xxx"

The court said that as the document does not impose the provision as a condition for the making of the gift the donee is not placed in such a position where she should have refused to accept the gift or run the risk of her losing her future right of succession. The learned District Judge further said that no rulings were sited before him which would go to show that the mere acceptance of a gift under the circumstances will work out an estoppel against the donee for claiming her future legitimate share in the properties of her father.

4. In this second appeal, the appellants defendants contend that the 2nd plaintiff is barred from claiming any share in the estate left by Noohu Kannu as she had accepted he gift under Ext.