IMPORTANT POINT
Estoppel applies when an expectant heir accepts consideration for relinquishing rights, preventing future claims, while lack of participation in prior deeds allows for subsequent claims.

JUDGMENT :

(Sathish Ninan, J.)

These appeals are by the plaintiffs 1 and 2 respectively, in a suit for partition. The suit was dismissed by the trial court.

2. The properties sought to be partitioned belonged to late Varu Joseph(hereinafter referred to as “Varu”). The first plaintiff, and defendants 1 and 2, are the children born to Varu in his first wife Thresiyamma. The second plaintiff and defendants 3 to 7 are the children born to Varu in his second wife Annakutti. Varu died on 12.12.1972. Thresiyamma died on 10.08.1940. Annakutti died on 17.01.1975. The suit is filed seeking partition alleging intestate succession.

3. The suit was resisted by defendants 3, 4 and 7. In their written statement, the claim of the first plaintiff for partition was defended relying on Ext.B1 Settlement Deed dated 28.11.1959, executed by Varu Joseph in favour of the children born in the first marriage viz. the first plaintiff, first defendant and second defendant. It was contended that the settlement of properties under Ext.B1 was in lieu of their shares in the father's property. Having accepted Ext.B1, they are estopped from claiming any further rights over the plaint schedule properties which are the remaining properties of the father, was the contention.

4. With regard to the claim of the second plaintiff, it was contended that the share due to her was provided at the time of her marriage. All the other children of Varu Joseph in the second marriage, viz. defendants 3 to 7, had executed Ext.B2 Partition Deed on 27.06.1981. Therein, the factum of the second plaintiff having been provided with her share and the consequent non-allotment of any properties to her was specifically narrated. The second plaintiff had acknowledged and affirmed the above in Ext.B3 Sale Deed executed by the 7th defendant in favour of a third party, who is impleaded in the suit as the 9th defendant. The second plaintiff had joined in Ext.B3 Sale Deed for such purpose. Therefore, the claim for partition by the second plaintiff cannot be sustained, it was contended. A plea of adverse possession and ouster was also urged. So also, a counterclaim was raised seeking partition of the properties covered under Ext.B1 claiming that, if Ext.B1 is found to be void the said properties are also liable to be partitioned.

5. The trial court held that, by virtue of Ext.B1, the claim of the first plaintiff cannot be sustained. The claim of the second plaintiff was negatived relying on the recitals in Exts.B2 and B3 documents. The suit and the counterclaim were dismissed. Plaintiffs 1 and 2 filed separate appeals. There is no appeal challenging the dismissal of the counterclaim.

6. We have heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the first plaintiff-appellant, Sri.Varghese Kuriakose, the learned counsel for the second plaintiff-appellant, Sri.George Cherian, the learned Senior Counsel, Sri. K. G. Balasubramaniyan and Sri. V.R.Kesava Kaimal on behalf of the contesting respondents.

7. The points that arise for determination in these appeals are: -

(i) Was the trial court right in having negatived the claim of the first plaintiff, by relying on Ext.B1 Settlement Deed?

(ii) Was the trial court right in upholding the relinquishment of rights under Ext.B1, in the light of Section 6(a) of the Transfer of Property Act?

(iii) Was the trial court right in having negatived the claim of the second plaintiff by holding that under Exts.B2 and B3 documents she had acknowledged relinquishment of her rights?

8. Ext.B1 is the Settlement Deed of the year 1959. It was executed by Varu, the father of the plaintiffs and defendants 1 to 7. It is executed in favour of the first plaintiff and defendants 1 and 2 who are the children born to him in his first wife. Ext.B1 recites that the properties thereunder are settled in favour of the first plaintiff and defendants 1 and 2 in lieu of the share which they would normally inherit from their father. Therefore, in the light of Ext.B1 settle