Madras High Court
Arumuga Udayar vs Swamiyar Alias Ramasamy Udayar And 3 ... on 15 February, 1997
Equivalent citations: 1997(3)CTC612
ORDER K.A. Swami, C.J.
1. This Letters Patent Appeal is preferred against the Judgment dated 29.9.1988 passed by the learned single Judge in A.S.No. 1182 of 1980 confirming the Judgment and decree passed by the Sub Court, Tiruvannamalai in O.S.No. 117 of 1977 on 8.5.1980. The said suit was filed by the appellant herein for partition and separate possession of his share in the suit scheduled properties on the ground that the suit properties are the joint family properties and he, being one of the co-parceners, is entitled to l/4th share. The defendants contended that the plaintiff was not entitled to any share as in a family arrangement, he had been given lands equivalent to his share and in addition to that a sum of Rs. 10,000 and a house had been given to him.
2. The trial Court, on the basis of the Pleadings of the parties, raised the following issues:-
"1. Whether the B and C Schedule properties are joint family properties?
2. Whether the properties purchased by the 1st defendant were purchased out of the surplus income from the family properties?
3. Whether the will executed by Annamalai Udayar is true and valid?
4. Whether items 1 to 4, 20 and 32 are the separate properties of 1st defendant?
5. Whether the settlement deed dated 2.1.1967 is true and valid?
6. Whether the present suit is maintainable?
7. To what relief?
Additional issue framed on 8.5.1980:-
Whether the prior partition alleged is true?"
It answered all the issues against the plaintiff and specifically found that the plaintiff in addition to the allotment of 3.41 acres of dry land and 2.75 acres of wet land, a sum of Rs. 10,000 was also given by way of family arrangement and a house was also purchased in his name. The trial court found that such an arrangement was not unfair and accordingly dismissed the suit with costs.
3. In the appeal, the leaned single Judge has scanned the entire evidence and has also recorded his finding in the following terms:-
"Apart from the evidence referred to above, the documentary evidence is not of much use in this case as admittedly there was no document evidencing the family arrangement pleaded by the defendants. Ex.B-63 is the settlement deed executed by the 4th defendant in favour of the plaintiff on 19.3.1965. Under the document, an extent of 3.41 acres if drylands and 2.57 acres of wet lands were given to the plaintiff. Besides the lands, the plaintiff was also deed dated 12.10.1962 under which the plaintiff purchased an extend of 44 cents of Nanja lands. On the date of Ex.B-1, the plaintiff was aged about 20 years. Admittedly, he did not have any source of income on that date. His version that he purchased the property with the aid of funds given by his wife and his own savings cannot be true, because, his marriage took place only in 1964. It follows, therefore, that the purchase made in 1962 under Ex.D-1 was out of the family funds. According to the evidence of D.W.I, the property purchased under Ex.B-1 and the properties given under Ex.B-63 were given to the plaintiff for his share of all properties pooled together. It is now in evidence that the total extent of the suit properties comprising of the ancestral properties and the properties purchased by the first defendant comes to 9.91 acres of dry land and 4.92 1/2 acres of wet land besides three houses and three wells. The fourth defendant got from her father an extent of 4.76 acres of dry lands and 5.79 acres wet lands. If all the properties are pooled together, the total extent of dry lands comes to 14.67 acres and the total extent of wet land comes to 10.72 acres. One-fourth share therein will come roughly to 3.56 3/4 acres of dry lands and 2.68 acres of wet lands. Considering the fact that the plaintiff has been given 3.41 acres of dry lands and 2.57 acres of wet lands besides a house, the case that there was a family arrangement in 1965 is probablised. Even though there is no satisfactory evidence to prove that there was a partition among all the members of the family and that properties were allotted to all the shares separately, the evidence makes out that there was an arrangement among the members of the family by which the plaintiff was given his one-fourth share. It is quite likely that soon after the marriage of the plaintiff, he insisted upon his share being given to him separately. It is seen from the evidence that the plaintiff's father-in-law who has deposed as P.W.2 that he is well versed in litigations. A suggestion is made to D.W.5 in the cross-examination that she executed Ex.B-63 because the father-in-law of the plaintiff insisted upon the properties being given to the plaintiff before he gave his daughter in marriage to him. The suggestion is no doubt denied by D.W.5. But, there is sufficient indication that soon after the marriage of the plaintiff, there was some clamour for division and separate allotment of separate properties. Ex.B-63 should have come into existence only pursuant to the arrangement among the members of the family. There was no reason why the 4th defendant should choose to make a gift of substantial properties viz-, one half of what she got from her father to one among her three sons, namely, the plaintiff."
4. It is contended before us that there was no family arrangement, that the stridhana properties of the mother, viz., defendant No. 4, cannot form part of the joint family properties and cannot also become part of the family arrangement. Therefore, whatever property that was settled by the mother (Defendant No. 4) in favour of the plaintiff could not have been taken into consideration for the purpose of determining that there was a prior family arrangement. Though in fact according to the appellant's counsel there was no such arrangement, we find it very difficult to accept this contention. It is only after taking into consideration, the entire evidence on record the trial court as well as the learned single Judge have specifically found that there was a family arrangement. It is because of this only, we have called out the relevant portions from the judgment of the trial court as well as that of the learned single Judge only to point out that a specific finding has been recorded by the trial Court as well as by the learned single Judge.
5. In the case of a family arrangement, it is not necessary that only the coparcenary properties should alone form subject of family arrangement. Properties belonging to all the members can be pooled together for amicable arrangement between the members of the family to avoid the existing and future disputes and to live happily and to ensure amity and good-will amongst the members of the family. In Ram Charan Das v. Girja Nandini Devi and Ors., the Supreme Court had an occasion to consider this aspect of the matter and it has been held as follows:-
"(10) The view that the transaction is a family arrangement is borne cut by the decision of the Privy Council in Ramgouda Annagouda v. Bhausaheb, 54 LA 396: AIR 1927 PC 227. The facts of the case which have been correctly summarised in the head note are briefly these:
"A Hindu died in 1847, leaving a widow who survived until 1912, and a daughter. On the death of the widow A was heir to the estate. In 1868 the widow had alienated nearly the whole property by three deeds executed and registered on the same day. By the first deed she gave a property to her brother, by the second she sold half of another property to A, and by the third she sold the other hold of that property to her son-in-law. The signature of each of the deeds was attested by the two other alienees. A who survived the widow for six years, did not seek to set aside any of the alienations. After his death his son and grandsons brought a suit to recover the whole property."
Upon these facts the Privy Council held as follows:-
"Their Lordships consider that the decision of this case depends upon how far the three documents can be taken as separate and independent, or so connected as to form one transaction.
The long lapse of time between the execution of the deeds and the institution of the suit has rendered it impossible to prove what actually occurred between the parties on that occasion. There is not sufficiently definite evidence to come to a conclusion as to how far any of those properties were validly encumbered, or what was done with the purchase money alleged to have passed on the two deeds of sale. But the parties to the documents included, or after so great a lapse of time may be presumed in a very real sense to have included, all persons who had any actual or possible interest in the properties-namely, the widow herself, her brother, who was a natural object of her affection and bounty, her son-in-law, who was the natural protector of the interests of her daughter and grandson, and the nearest kinsman on the husband's side and the only person from whom any opposition might be apprehended with regard to dealings by the widow concerning her husband estate.
Their Lordships conclude that all the circumstances strongly point to the three documents being part and parcel of one transaction by which a disposition was made of Akkagouda's estate, such as was likely to prevent disputes in the future and therefore in the best interests of all the parties. The three deeds appear thus to be inseparably connected together and in that view Annagouda not only consented to the sale to Shivagouda and the gift of Basappa but these dispositions formed parts of the same transaction by which he himself acquired a part of the estate."
In our case, however there is fortunately only one transaction and we have definite evidence to show that there were disputes amongst the members of the family and it was avowedly for settling them that the transaction was entered into. Further we have material to show that all the persons who can be said to be interested in the property were joined as parties to the transaction. In that sense this case is stronger than the one which the Privy Council had to consider. We have therefore no hesitation in holding that the plaintiff who has taken benefit under the transaction is not now entitled to turn round and say that that transaction was of a kind which Kadma Kuar could not enter into and was therefore invalid. Moreover acting on the terms of that document Gopinath paid monies to the court of Wards for obtaining release from its management of the properties which were allotted to him. The rule of estoppel embodied in Section 115 of the Indian Evidence Act, 1872, would, therefore, shut out such please of the plaintiff. Courts give effect to a family settlement upon the. board and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagouda's, 54 LA 296: AIR 1927 PC 227, of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not under the Hindu Law be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to he impeached thereafter" (Italics supplied)
6. The same is the view taken in Pullaiah v. Narasimhan, AIR 1966 SC 1836, wherein the Supreme Court has observed as follows:-
"(17) Briefly stated, though conflict of legal claims in prescient or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it."
7. Therefore, we are of the view that the finding recorded by the learned single Judge that there has been clear and proper family arrangement as such, the appellant is not entitled to claim partition ignoring the family arrangement is well founded. As such, it does not require interference. We, accordingly, confirm the judgment of the leaned single Judge and dismiss the appeal. However, we pass no order as to costs.
8. In view of the dismissal of the L.P.A., CMP. 12884 of 1993 for filing additional evidence does not survive. It is accordingly, rejected.