S. Sankarasubban, J. 1. This appeal is preferred by the plaintiff in O.S. No. 485/88 on the file of the Subordinate Judge's Court, Thrissur. The suit was filed for recovery of possession of the plaint schedule property from the defendant. The case of the plaintiff was that the plaintiff had married one Rajendra Prasad, the brother of the defendant. With regard to the properties inherited by the defendant and his brothers from their father, they entered into a partition deed in 1984 and 'B' schedule properties were allotted to the plaintiff's husband Rajendra Prasad. The 'B' schedule properties were being looked after by the defendant. The relation between the plaintiff and her husband was not cordial and even though they agreed to divorce, that divorce was not granted, because before the order was passed, the plaintiffs husband died. Thus, at the time of the death of Rajendra Prasad, the plaintiff was his wife and as per the Hindu Succession Act, she was entitled to succeed to his properties. After the death of her husband, the plaintiff's issued notice to the defendant to return the properties to her. But since the defendant showed his unwillingness and was raising untenable contentions, the suit was filed for recovery of possession.
2. On behalf of the defendant, it was contended that the plaintiff was not the wife of Rajendra Prasad at the time of his death. From 1986 onwards, the plaintiff and her husband were living apart because of incompatibility of temperament. Mediators intervened and as per the mediation, the plaintiff agreed for divorce on certain conditions. These conditions were satisfied. It includes the transfer of property in the name of the plaintiff by her husband. Both the plaintiff and her husband had filed petitions for divorce, under Section 13B of the Hindu Marriage Act. As per Section 13B of the Hindu Marriage Act (hereinafter called as 'the Act'), an interval of six months has to elapse before the Court passes the order of divorce. But before the expiry of six months period, Rajendra Prasad died. But even then, according to the defendant, the plaintiff was a divorced woman. Further he contended that by receiving Ext. B1 properties from her husband, the plaintiff was estopped or waived her right to 'B' schedule properties. It was further contended that after the death of Rajendra Prasad, the plaintiff had remarried and hence in any event, she is not entitled to succeed the properties of deceased Rajendra Prasad. It was further contended that Rajendra Prasad took a loan of Rs. 20,000/- from the defendant and had executed Ext. B2 mortgage in favour of the defendant. The defendant is entitled to realise that amount. He also submitted that Rajendra Prasad received Rs. 40,000/- and was about to execute a mortgage document. But before that he died. Thus, the defendant submitted that in case it is found that the plaintiff is entitled to the property, he is entitled to the amount from her husband, as per Exts. B2 and B3.
3. On the above pleadings, the Court below raised the following issues :
(1) Is the plaintiff having any the to the suit properties ?
(2) Whether the plaintiff is entitled to recover possession of the plaint schedule properties?
(3) Whether the defendant is entitled to get the benefits under Section 53-A of Transfer of Property Act ?
(4) Whether the suit is properly valued for the purpose of Court-fee ?
(5) Whether the Court-fee paid is correct ?
(6) What are amounts due to the defendant in the event of recovery of possession ?
(7) What order as to reliefs and costs ?
Addl. (8) Has the plaintiff relinquished her right over the properties of deceased Rajendra Prasad ?
(9) Is the plaintiff estopped from claiming right, title and interest over the plaintiff schedule properties ?
On behalf of the plaintiff, she was examined as PW 1. The defendant was examined himself as DW1 and he examined two witnesses Ramanathan and Sankaranarayanan as DWs 2 and 3. While Exts. A1 to A7 were marked on the part of the plaintiff, Exts. B1 to B5 were marked on the side of the defendant. The Court below considered issues I, 2, 3 and additional issues 8 and 9 together. It came to the conclusion that the plaintiff was estopped from claiming any right over the plaint schedule property. This finding was derived from the conduct of the plaintiff in filing the applications for divorce and also believing the evidence of DWs 1, 2 and 3 that the plaintiff had agreed for divorce and had obtained properties evidenced by Ext. B1 as a consideration for not claiming any other properties of her husband. Regarding the issue whether the defendant was entitled to get the benefit of Section 53A of the Transfer of Property Act, the Court held that the defendant did not press the benefits of the Act. But it did not decide the issue whether amounts are due to the defendant in the event of recovery of possession. So also it did not determine the mesne profits.
4. Learned counsel for the appellant Shri. P.G. Parameswara Panicker submitted that the judgment of the Court below is not correct. He contended that a wife does not cease to be a wife till divorce is granted by a competent Court of law. He further contended that the Court below was not correct in holding that the plaintiff was estopped from claiming any right to the properties of deceased Rajendra Prasad in view of Ext. B1. On the other hand, learned counsel for the respondent submitted that all necessary procedures for obtaining a divorce had been complied with. But before the order was passed, Rajendra Prasad died. He submitted that Ext. B1 though it was styled as an assignment deed, is in fact a document conveying properties to the plaintiff by the deceased Rajendra Prasad. By the transfer of these properties, the plaintiff had obtained all her rights over the properties of her husband. Learned counsel also submitted that Ext. B2 mortgage is not barred by limitation and if the Court finds that the plaintiff is entitled for recovery, the defendant will be entitled to the amount under Ext. B2 with interest thereon.
5. After hearing counsel on both sides, according to me, the following points arise for consideration :
(1) Was the plaintiff disentitled to claim title over the plaint schedule property on the ground that Ext. A4 petition was pending at the time of the death of Rajendra Prasad ?
(2) Was the plaintiff estopped from claiming title over the plaint schedule property in view of Ext. B1 transfer by Rajendra-Prasad in favour of Thankam ?
(3) Is Ext. B2 mortgage barred by limitation '?
(4) What is the mesne profit ?
(5) What is the amount due to the plaintiff/ defendant ?
Learned counsel for the respondent submitted that the plaintiff and her husband Rajendra Prasad were not in good terms and they were living separately. Both of them wished divorce. There were interventions by mediators. DW 2 was one of those persons. The defendant submits that according to the mediation, the husband of the plaintiff agreed to return 3 sovereigns of gold chain and Rs. 15,000/- and also gave the property which is covered by Ext. B1, to the plaintiff. It was contended that even though actual decree for divorce was not granted, as a matter of fact, the plaintiff had ceased to be the wife of Rajendra Prasad. I don't think, I can accept this argument. The wife is a class I heir under the Hindu Succession Act. So when a deceased male member dies and the wife survives him, she is class I heir. Learned counsel for the respondent submitted that in view of the fact that the petition for divorce was submitted before the death of Rajendra Prasad, she should be deemed to have been divorced and that the plaintiff was not the wife at the time of the death of Rajendra Prasad.
This argument cannot be accepted. The wife continues to be the wife till the marital tie is broken by a decree under the proceedings of the Hindu Marriage Act. Any transaction or any document showing a divorce cannot be accepted in the eye of law unless a decree is granted under the Hindu Marriage Act (here the parties are Hindus). Even if the husband and wife executed a document slating that their marital tie is broken, that will not be a valid document in the eye of law to show that the parties have dissolved the marriage. Divorce has to be obtained in accordance with the procedure under the Hindu Marriage Act. Section 13B of the Act gives opportunities to both husband and wife to get a divorce by joint petition. Further, under Section 13B(2) of the Act, divorce can be granted only with effect from the date of decree. In this case, no decree for divorce was granted by the Court. Hence, the plaintiff continued to be the wife of deceased Rajendra Prasad in spite of the steps taken for divorce.
6. The next contention raised is that the plaintiff was estopped from claiming any right to the schedule properties. As already staled, the plaintiff becomes a class I heir at the time of the death of Rajendra Prasad. Since the mother predeceased her husband, the plaintiff will be entitled to the entire properties left behind by Rajendra Prasad. The next question is whether this right is lost either because of Ext. Bl transaction or because she remarried. There is nothing to show that the plaintiff has lost her right by estoppel. Even though it was contended that there is an agreement between the parties showing that the plaintiff has divorced heresetf from her husband, there is no acceptable evidence to show that Ext. Bl properties were obtained by the plaintiff in exchange of her right over the properties belonging to deceased Rajendra Prasad. Ext. B1 does not show anything with regard to the arrangement, which is said to be made in view of the pending divorce proceedings. Ext. Bl document docs not show that it was obtained by her in lieu of her right over the properties belonging to Rajendra Prasad. After all, the right which the plaintiff had was only a spes successionis. That right cannot be transferred. But here, what is contended is that the above right was lost when she entered into divorce with Rajendra Prasad. But none of the documents produced would show that she has given up any right. Ext. B1 also does not show any indication. Further, at the time when Ext. Bl was executed or when divorce proceedings were instituted, it was not thought that divorce would not be granted. Hence, such a document could not have been executed giving up her right as the wile of Rajendra Prasad.
7. To create estoppel, it is necessary that some considerations should have been received. In Gulam Abbas v. Haji Kayyam, AIR 1973 SC 554 the Supreme Court observed as follows (at page
557):
"This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit cannot bind the expectant heir's conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to misled an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement."
In the present case, there is no renunciation. The next question to be considered is whether because the plaintiff had remarried, she loses her right. This is not correct. Under the Law of Inheritance on the death of a person, his estate is to be inherited. As a matter of fact. Sections 18 to 28 of the Hindu Succession Act deal with general provisions relating to succession. Section 24 of the Hindu Succession Act states that certain widows remarrying may not inherit as widows. Section 24 of the Hindu Succession Act is as follows :
"Any heir who is related to an interest as the widow of a predeceased son, the widow of a predeceased son a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the interest as such widow, if on the date the succession opens, she has remarried".
This is only with regard to predeceased son. On the date of succession, the plaintiff had not remarried. Under Section 25 of the Hindu Succession Act, a murderer is disqualified. Thus this contention cannot be upheld. Thus, there is no estoppel on the part of the plaintiff and the plaintiff is entitled to inherit the properties of her husband.
8. The next point to be considered is with regard to Ext. B2 mortgage. Ext. B2 mortgage is dated 28-12-1984. As a simple mortgage, it becomes barred by limitation only after 12 years. Hence, the mortgage was not barred by limitation. There is nothing to show that the document is a fraudulent one. Hence, the defendant is entitled to get the amount under the mortgage. Regarding the mesne profits, the defendant has said that the property will fetch an income of Rs. 10,000/- per year, whereas the plaintiff has fixed for the purpose of Court fee at Rs. 7,740/-. The plaintiff has claimed mesne profit at Rs. 5,570/-. After hearing counsel on both sides. I fix the mesne profit at Rs. 5,000/- per annum. 9. In the result, the judgment and decree of the Court below are set aside. The suit is decreed as follows :
(1) It is hereby declared that the plaintiff is entitled to recover possession of plaint schedule property from the defendant and that the plaintiff is also entitled to recover mesne profit at the rate of Rs. 5,000/- per annum from the date of suit till the date of recovery of possession from the defendant.
(2) The defendant is entitled to recover an amount of Rs. 20,000/- with interest al 12% per annum from 28-12-1984 till the date of the suit and at 6% from the dale of suit till the date of recovery from the plaint schedule property.
(3) The amount of mesne profits due to the plaintiff can be adjusted with the amount due to the defendant, and the plaintiff need deposit the balance amount only. In case on such adjustment no amount is due from the plaintiff, the plaintiff can apply for execution for recovery of possession without depositing any amount. If on such adjustment amount is due to the defendant, the plaintiff can get delivery of the property only after depositing such amount.
(4) There will be no order as to costs.