Patna High Court
Kisto Chandra Mandal And Ors. vs Mt. Anila Bala Dasi And Ors. on 31 October, 1967
Equivalent citations: AIR1968PAT487, AIR 1968 PATNA 487
JUDGMENT B.N. Jha, J.
1. This first appeal by defendants 2, 3, 4 and 7 arises out of a suit for partition brought by the plaintiff-respondent 1 for the partition of her one-fourth share in the properties described in the three schedules of the plaint.
2. The facts in this case are not in dispute. The parties are governed by Dayabhag school of Hindu law. The suit properties absolutely belonged to one Jadu Mandal, who died in Aswin, 1365 B S. He had two sons, Ajodhya Mandal arid Banamali Mandal. Both of them predeceased him. The plaintiff is the widow of his predeceased son, Banarnali Mandal. Defendants 1 to 7 are sons, daughters and widow of his elder son Ajodhya Mandai, Defendants 8 and 9 are his daughters, Jadu Mandal died leaving behind the plaintiff and the defendants as his heirs and successors in interest.
3. According to the case of the plaintiff, Jadu Mandal was in possession of all the properties mentioned in schedules A, B and C of the plaint till his death: and. after his death the properties vested upon the plaintiff and the defendants and they are in joint possession of the same. As Jadu Mandal became very old, he was incapable of managing his properties. He allowed the plaintiff, defendant 1, and defendants 2, 3, 4 and 7 to cultivate different portions of the suit land for better management and cultivation. They have been living separately in mess. There was no partition of the said properties according to legal shares. The plaintiff and the defendants have not been puliine on well and as such joint possession and cultivation of the suit land are noL possible. In spite of demand the defendants do not seem to be agreeable to amicable partition of the properties and hence the suit.
4. Defendants 1. 5 and 6 filed one set of written statement and supported the cast of the plaintiff and they showed their willingness to the partition of the suit land according to legal shares. Another written statement was filed by defendants 8 and 9, who are the daughters of Jadu Mandal. They also supported the case of the plaintiff. They claimed one fourth share each in the properties of Jadu Mandal, which are the subject-matter of partition. A formal written statement was filed t?y minor defendant 4.
5. The suit was resisted by defendants 2, 3 and 7 They filed one joint written statement. Their plea was that the suit is barred by the law of limitation and the plaintiff has got no cause of action for the suit. According to them Jadu Mandal died in Aswin 1365 B. S. He was the sole owner of all the properties which are the subject matter of the suit. During his lifetime there were quarrels amongst his grandsons and daughters-in-law He anticipated that there would be trouble with regard to the enjoyment of the properties amongst his grandsons and the plaintiff and other heirs. With a view to avoiding such dispute he made a family settlement of his properties on the 9th Baisakh, 1354 B. S. with regard to the properties mentioned in schedules A and B of the plaint, and he made six allotments of the properties. He kept 12 bighas 3 kathas 5 dhurs for himself and gave 8 bighas 7 dhurs to the plaintiff for her maintenance. The rest of the properties was given to Gadadhar Mandal. defendant 1, Kristo Chandra Mandal, defendant 2, Ramchandra Mandal, Defendant 3, and Nitaichandra Mandal, defendant 4. The full descriptions of the separate allotments of the properties made in the family settlement are given in their written statement. The family settlement was incorporated in a document, Exhibit A-1, in presence of panches and since that date each of the allottees came in separate and exclusive possession of the properties allotted to them. On that very day movable properties were also divided. Only the tank and mango orchards were left ijmal. It was provided in the family arrangement that 12 bighas and odd which Jadu Mandal kept for himself, would be divided amongst the four sons of his predeceased sons, Ajodhya Prasad Mandal after his death. They denied the plaintiffs assertion that Jadu Mandal was in possession of all the suit properties till his death and on his death the suit pro-parties vested in the plaintiff and defendants jointly as being heirs and legal representatives and that they are in joint possession of the same, They also denied the plaintiff's allegation that the plaintiff and the defendants had been cultivating separate parcels of land according to their convenience during the lifetime of Jadu Mandal. and there has not been partition of the suit properties according to their shares. According to them, Jadu Mandal left no properties of his own at the time of his death except the properties which had been kept by him in the family settlement, but they were to be divided amongst his four sons (grandsons?) of Jadu Mandal after death. Therefore, defendants 8 and 9 did not inherit any properties of Jadu Mandal. On these allegations they prayed for the dismissal of the suit.
6. The learned Subordinate Judge t amed a number of issues in the ease.
e came to the conclusion that Jadu Mandal actually made division of his pro perties between his grandsons and daugh-
tsrs-in-law with the object of preserva tion of peace in the family; that the al lotments of shares were incorporated in the document, Exhibit A-1, which was drawn up at his instance; that the docu ment, Exhibit A-1, is a genuine document and it was acted upon and that the al lottees actually began to cultivate their land separately according to the division of land mentioned in Exhibit A-1. He, however, held that bantannama, Exhibit A-1, is not a document of a family set tlement. The transaction as per Exhibit A-1 is hit by the provisions of Section 27 of the Regulation of 1872 and Section 20 of the Santhal Parganas Tenancy Act;
and as such the allottees did not acquire any title under it. The inheritance of the properties of Jadu Mandal opened in Aswin, 1365 B. S. and the suit having been filed within two years is not barred by limitation. On the above findings he passed a preliminary decree in favour of the plaintiff. He held that the plaintiff is entitled to one-fourth share, defendants 8 and 9 to one-fourth share each, and the rest one-fourth share would go to defen dants 1 to 7 to be equally divided amongst them. Hence, defendants 2, 3 and 7 have come up in appeal to this Court.
7. Mr. Ghosal, learned counsel for the appellants, raised several contentions before us in support of the appeal. He has submitted that the transaction as de-scribed by Exhibit A-1 is a family settlement; and, as such it is not hit by Section 27 of the Regulation of 1872 and Section 20 of the Santhal Parganas Tenancy Act. He has further submitted that the family settlement had been acted upon the parties concerned and they derived benefits under the transaction; and, as such, they cannot be permitted to resile from that position. Hence, it is binding on the plaintiff. On the other hand, Mr. Sanyal, appearing for the respondents, contended that the transaction in question is not a family settlement but out and out a gift to the persons named in the document, Exhibit A-1, and the transaction is invalid for want of registration and for the restrictions imposed on such transfer by the special laws prevailing in the district of the Santhal Parganas. He further contended that there could not be any estoppel against the statute and no equitable estoppel could be applied as against the statutory provisions forbidding the transfer of the property in question. A large number of decisions were cited before us by learned counsel of both sides in support of their respective contentions, which I shall consider hereinafter.
8. The relevant provisions of Section 27 of Regulation III of 1872 run as follows:
"(1) No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded.
(2) No transfer in contravention of subsection (1) shall be registered, or shall be in any way recognised as valid by any court, whether in the exercise of civil, criminal or revenue iurisdiction.
This section was subsequently repealed by Section 3 of and Schedule to the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. The corresponding provision was made in the Act of 1949 under Section 20. which is in the following terms:
"(1) No transfer by a raiyat oi his right in his holding for) any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid unless the right to transfer has been recorded in the record of rights and then only to the extent to which such right is so recorded:
(3) No transfer in contravention of subsection (1) or (2) shall be registered, or shall be in any way recorded as valid by any court, whether in exercise of civil, criminal or revenue iurisdiction."
At the relevant time. Regulation III of 1872 governed the law relating to transfer of immovable properties. From the above provisions it is clear that Jadu Mandal had no right to make a transfer of his landed property in favour of the plaintiff or some of the defendants by way of gift or otherwise. But Mr. Ghosal contended that as the transaction in question is a family settlement, it is not a transfer or a creation of any interest in the immovable property and as such it is not hit by the above provisions of the Santhal Parganas Land Laws. In support of his contention he has relied on a decision of the Supreme Court in Ram Charan Das v. Girja Nandini Devi, AIR 1966 S. C. 323. In that case, a family settlement was entered into by the widow and persons interested in the settlement. The United Provinces Court of Wards held the property on behalf of the widow at the relevant period of the transaction. There is a similar provision prohibiting the transfer or creating aa interest in the property by the ward during the period the property was in the management of the Court of Wards. The relevant portion of Section 37 (a) of the United Provinces Court of Wards Act, 1912, reads as follows:
"A ward shall not be competent--(a) to transfer or create any charge, on, or interest in, any part of his property which is under the superintendence of the Court of Wards, or to enter into any contract which may involve him in pecuniary liability."
An objection in the case was raised that the alleged family settlement was hit by the provision of Section 37 (a) of the Act. It was held therein that the family settlement could not be regarded as an alienation of the property or the creation of an interest in it; and, as such, the transaction in question was not hit by the provision of Section 37 (a) of the Act. This case no doubt supports the contention of Mr. Ghosal that a family settlement could not be regarded as an alienation of the property by way of sale, gift and etc. or any other contract or agreement in respect of the property; and, as such, the transaction in question will not be hit by the restrictions imposed on the transfer under the above Santhal Parganas Regulations or the Santhal Parganas Tenancy Act provided the transaction is a family settlement.
9. A transaction cannot be family settlement simply because a party chooses to call it so. In order to determine whether the transaction in question is a family settlement or out and out a transfer of the property by way of gift to his relations by Jadu Mandal, it is necessary to quote the relevant portions of the document, Exhibit A-l which are as follows:
"Bantannama (Deed of partition) executed by Jadav Chandra Mandal dated the 9th Baisakh, 1354 B. S. corresponding to 23-4-1947.
Sd. Sri Jadu Mandal.
resident of Pichhuli, by own pen.
I hereby appoint you the undermentioned gentlemen as arbitrators. All of you together may kindly come to mauza Pichhuli and make a bantannama (deed of partition) in respect of my entire move-able and immovable properties recorded in my name during the survey and settlement operation and possessed by me, namely, lands, bari ghar (house) tank, orchard and (illegible) as proposed by me and thereby oblige me.
The names of the arbitrators: Shri Abhi-ram Thakur, Sri Dwarika Nath Jha, and Kamla Kanta (illegible), all of Lakshibad. Sri Daman Chandra Mandal and Akrur Chandra Mandal and Manohar Mandal and Kashinath Mandal, all of Pichhuli.
My prayer before you is that you would set apart some land and bari whereby I may maintain myself till my lifetime.
My youngest daughter-in-law (son's wife) had got no son etc. So you would set apart some land and bari for the maintenance of the aforesaid two persons, you would make partition of the remaining lands and bari in equal shares among the four cosharers, namely:
1. .Gajadhar Mandal 2. Harekrishna Mandal 3. Rampada Mandal, 4. Nitai Mandal, who are the future heirs to my properties. Dated the 9th Baisakh, 1354 B. S.
1. By:
Jadav Chandra Mandal, son of late Bakkanath Mandal, by caste Sare (sic) Khyati (surname) Mandal by occupation a cultivator, resident of Pichhuli, circle Sapchala. thana Mahishlia, Subdivision Dumka, district Santhal Parganas.
This bantannama (deed of partition) is executed to the following effect that due to my advanced age I have become bodily weak. I feel that I have become unable to bear the burden of household affairs and I am afraid that on my death my undermentioned heirs may quarrel among themselves for the properties of my father's brother, namely, lands, bari, ghar (houses), tank, orchard, fruit bearing trees, etc. palm trees, bamboo etc. recorded in my name during the survey and settlement operation and possessed by me and may thereby squander away the small properties or may suffer from disturbance of mental peace by entering into litigations. Hence, today I appointed arbitrators from my own village, from outside the village and the panches of Sapchala circle and called them together to village Pichhuli and in the presence of all, I having set apart (some properties) for the maintenance of myself and my youngest daughter-in-law (son's wife), partitioned the entire remaining properties into four equal shares. But be it stated that on my death, the said four cosharers shall partition the land set apart for my maintenance in equal shares among themselves. To this effect, 1, of my own accord and in the presence of all, execute this bantannama (deed of partition). After preparing separate papers in respect of the properties allotted to each I handed over the respective papers to each of them and the cosharers received the papers in respect of each. I have made lists of ghar (house), bari etc. allotted to each in their respective papers. No one shall get anything claimed (in addition) outside these written papers.
Particulars of properties.
Scribed by Sd. Nabakrishna Sartor of Lakhibad.
The 9th Baisakh, 1354 B.S. (Signature on the back) Sd. Sri Abhiram Thakur (illegible). 9th Baisakh, 1354 B. S. Sd. Sri Dwarika Nath Jha of Lakhibad. Sd. Sri Kamla Kanto Layak of Lakhibad, Sd. Sri Doman Mandal of Pichhuli. Sd. Sri Akrur Mandal of Pichhuli. Sd. Sri Kashinath Mandal of Pichhuli. T. I. of Manohar Mandal of Pichhuli."
The nature of the document, whether it is a family settlement or a deed of gift, has got to be gathered firstly from the document itself and then from the surrounding circumstances, if the document is vague. The document is described as bantannama, that is, a deed of partition, and is dated the 9th Baisakh, 1354 B. S. There are two parts in it. The first part shows that Jadu Mandal appointed panches by the document. The panches are named in it. A request was made to the panches to come at his place and make bantannama in respect of his entire movable and immovable properties. They were requested to set apart some land for his own maintenance and some for the maintenance of his widowed daughter-in-law, that is, the plaintiff and make a division of the rest of the properties amongst his four grandsons viz.. Gada-dhar Mandal (defendant 1), Harekrishna Mandal. that is, Kristo Chandra Mandal (defendant 2), Rampada Mandal, that is, Ramchandra Mandal (defendant 3) and Nitai Mandal, that is, Nityananda Mandal (defendant 4). The second part consists of the main document, which is described as bantannama (deed of partition) executed by Jadu Mandal.
10. It appears from the document that the purpose of its execution was that the executant had become too old to bear the burden of the household affairs and also to safeguard the possibility that after his death the heirs might not quarrel amongst themselves for the properties and might thereby squander away the properties and might suffer from disturbance of mental peace by entering into litigation. The document further shows that Jadu Mandal gave some properties to his widowed daughter-in-law, that is, the plaintiff, for maintenance and kept some properties for himself which would be divided after the death amongst his four grandsons. The rest he partitioned equally amongst his four grandsons in presence of the panches. In the schedule portion there are six allotments. Separate papers in respect of the properties of each allotment were prepared and were given to each of the allottees which they received ia token of having accepted the properties given to them. Some properties were kept ijmal for the common enjoyment of all. The document does not show that the four grandsons and the widowed daughter-in-law had any hand in making the arrangement. The daughters of Jadu Mandal, defendants 8 and 9, were no parties to it and they were not even thought of as prospective heirs. Therefore, reading the document as a whole it appears to me that in presence of the panches and with their consent, Jadu Mandal divided the properties into six divisions. One was kept by him, one was given to the plaintiff for her maintenance and the rest four were given to each of the defendants 1 to 4. Thereafter, the second part of the document, that is, the bantannama portion was executed. Therefore, this document is not a document of partition. It is only a memorandum ,of the various allotments of properties made by Jadu Mandal and given to the allottees for the purpose of further reference.
11. With regard to the arrangement, the contesting defendants put forward their case in paragraph 12 of their written statement which is in the following words :
"That the faat is that owing to family faction and fued Jadu Mandal anticipated that there will be trouble with regard to the enjoyment of the properties recorded in his name and which belong to him amongst his grandsons and the plaintiff and others and with a view to avoid all such disputes in the presense of panchayat arrived at a family settlement of his properties described in schedules A and B of the plaint and that separate allotments as described below were made of the said properties to the respective parties on the 9th Baisakh 1354 B. S. and that the said family settlement was incorporated in papers in presence of the panches and that since that date the respective parties as noted below have been in exclusive possession of the separate parcels allotted to them and that the following settlement was made with regard to that properties described in schedules A and B plaint."
12. The above statement clearly shows that-
(1) the entire properties belonged to Jadu Mandal;
(2) Jadu Mandal anticipated that after his death there would be trouble with regard to the enjoyment of his properties amongst his grandsons and the plaintiff, (3) with a view to avoiding all such disputes, he made separate allotments of his properties which were given to the allottees in presence of the panches; the arrangement was incorporated in papers in presence of the panches; and (4) since thereafter the parties have been in separate and exclusive possession of the properties given to them.
13. The learned Subordinate Judge has found that the document is real and genuine and has been acted upon by the parties concerned and since the date of the document the parties have been in separate and exclusive possession of the same in pursuance of that arrangement. The parties did not dispute the correctness of these findings. However, they differ with regard to the finding that the document, Exhibit A-1, is not a deed of family settlement.
14. The question regarding the family arrangement has come up for consideration several times before the Privy Council, the Supreme Court as well as the High Courts. It is not necessary for me now to give a detailed resume of those cases. The law regarding the family arrangement has been clearly summarised by the Supreme Court in Sahu Madho Das v. Mukand Ram, AIR 1955 SC 481. It has been laid down as follows:
"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portion allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person rsceiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is eoncerned and therefore no conveyance is necessary."
14-A. It is also BOW well settled that the court will lean towards upholding the family settlement as it is intended to bring about family peace and to avoid future disputes which may ruin the family. But while determining whether a particular transaction is a family settlement or not, it is necessary to bear in mind whether the settlement entered into by the parties concerned is bona fide settlement of conflicting claims of the parties. It is not for the court to determine whether at the time of the settlement the parties had antecedent title or not It is sufficient that the parties asserted some kind of antecedent title or semblance of title. In this connection, I may quote here the observation of Mukherji and Guha, JJ., in Sashi Kantua Acharjee v. Promode Chandra Roy, AIR 1932 Cal 600, which has been quoted with approval by a Division Bench of this Court in Mt. Kauleshwari Kuer v. Surajnath Rai, AIR 1957 Pat 456 at p. 460. It reads as follows:
"On reading these decisions with care, it seems to us that, if there is one principle that follows from all of them unmistakably, it is this, that the arrangement must be concluded with the object of settling bona fide a dispute arising out of conflicting claims to property, which was either existing at the time or was likely to arise in future. Bona, fides is the essence of its validity, and from this it follows that there must be either a dispute or at least an apprehension of a dispute, a situation of contest, which is avoided by a policy of giving and taking or else, all transfers or surrenders will pass under the cloak of a family arrangement."
I entirely agree with the above observation. The basis of all compromises and family settlement is the existence of doubtful claims or semblance of claim of the parties concerned in respect of the properties in dispute. The motive for settlement is to settle the existing disputes or anticipated disputes, which are likely to arise in future and to secure peace to the family so that the properties in dispute and the family concerned may not be ruined. The anticipated dispute must be real and not imaginary. The end is secured by settlement amongst, the parties by resolving the conflicting claims by the process of giving and taking, which is the consideration of the compromise or family settlement. In all compromises, there is some kind of consideration. If there is none, no compromise would be valid.
15. Admittedly, the parties are governed, here, by Dayabhaga School of Hindu Law and, therefore, Jadu Mandal was the absolute owner of his properties so long he was alive. The plaintiff and the defendants had no antecedent title or semblance of title to the properties of Jadu Mandal during his lifetime. He was free to deal with his properties as he liked. It is not the case of the contesting defendants that there was any dispute in regard to the properties of Jadu Mandal or any of the parties asserted any claim to the properties. There was so question of any giving and taking. The transaction was one sided affair. In similar circumstances in Mt. Kauleshwari Kuer's case, AIR 1957 Pat 456 referred to above, the compromise was not upheld by this Court as a family settlement. Therefore, in my judgment, the transaction could not be regarded as a valid family settlement. It could only be regarded as gift by Jadu Mandal of his properties in favour of the persons mentioned in the document. The parties accepted the gift, came in possession in pursuance of it and continued in possession till the death of Jadu Mandal.
16. Now the question is whether the donees under the transaction evidenced by the document, Exhibit A-1, acquired valid title. There are two hurdles in the way of the appellants in this connection. Firstly, if it is a deed of gift, it is hit by Section 27 of Regulation III of 1872 as quoted above and as such the transaction will be void. Secondly, a gift of immovable property must be made by registered instrument signed by or on behalf of the donor and attested by at least two witnesses according to the provisions of Section 123 of the Transfer of Property Act. Therefore, the donees under the alleged transaction or the deed, Exhibit A-l could not acquire any title. The question, however, is that whether they could acquire title by adverse possession. The document, Exhibit A-l, was executed on the 9th Baisakh, 1354 B. S. corresponding to the 23rd April, 1947. Jadu Mandal died in Aswin, 1365 B. S. and the present suit, out of which the present appeal arises, was filed on the 18th February, 1959. In these circumstances, the donees could not be regarded to have acquired title without twelve years adverse possession in respect of the properties given by Jadu Mandal to them as shown in the document, Exhibit A-1. Though after its execution, possession of the properties was given to the donees, yet legal title in the properties remained in Jadu Mandal which vested in his heirs after his death.
17. The matter could be considered from another point of view. Assuming that the transaction as represented by Exhibit A-l is a family settlement, whether the persons to whom the properties were given could acquire valid title under it. Mr. Sanyal has submitted that the document and the written statement of the contesting defendants show that absolute title of Jadu Mandal was recognised by the plaintiff and defendants 1 to 4 and 7 and they further show that these persons derived title from Jadu Mandal under the alleged family settlement. In such circumstances, he submitted that title in the disputed properties could not pass from Jadu Mandal to the plaintiff and the aforesaid defendants without a registered document. In my opinion, there is force in this contention. It is true that a family settlement could be effected orally or a memorandum of the arrangement under the family settlement so arrived at could be subsequently reduced into writing for future reference. In such a case, no registration would be required. But when the family settlement is effected by a docu ment by which exclusive title and possession with regard to the property given to one is recognised and with regard to other property is extinguished the settlement has got to be made by a registered document: see Tek Bahadur v. Debi Singh AIR 1966 SC 292. Mr. Sanyal has further drawn our attention to the observations of the Supreme Court in AIR 1955 SC 481 which read as follows:
"But. in our opinion, the principle can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and absolute title to all the properties resides in only one of their number (provided he or she claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.
The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claim--ed and asserted by him and that it had always resided in him. Next it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z and thereafter B, C and D would hold their respective titles under the title derived from A. But in that event, the formalities of law about the passing of title by transfer would have to be observed, and now ei f her registration or twelve years adverse possession would be necessary. But in the present case we are dealing with an agreement made in 1875 at a time when the Transfer of Property Act was not in force and no writing was required, and, as there is no writing, the Registration Act does not apply either. Therefore, the oral arrangement of 1875 would be sufficient to pass title in this way and that, in our opinion, is what happened."
18. Learned Counsel has further drawn our attention to the decision of the Supreme Court in AIR 1966 SC 292 in which the above observation made in Sahu Madho Das's case, AIR 1955 SC 481 has been very clearly put in the following words.
"This Court extended the principle behind the family arrangement to other cases which were not covered by the earlier observations (referred to above). It is urged, on the basis of these further observations, that registration is necessary for a document recording a family arrangement regarding properties, to which the parties had no prior title. Those observations apply to a case where one of the parties claimed the entire property and such claim was admitted by the others and the others obtained property from that recognised owner by way of gift or by way of conveyance. In the context of the document stating these facts this Court held the real position to be that the persons obtaining the property from the sole owner derived title to the property from the recognised sole owner and such a document would have to satisfy the various formalities of law about the passing of title by transfer."
In view of the law laid down in this case, the Supreme Court contemplated a class of cases of family settlement, where a person claimed absolute title in respect of the whole property and other contestants recognised that title in the family settlement and thereafter they derived title from the recognised sole owner. This kind of family settlement could only be effected by the usual processes of law of transference of title and subject to such conditions. In the present case, Jadu Mandal was admittedly the sole owner of all the properties and the properties were given by him to the plaintiff and defendants 1 to 4 by the alleged family settlement. Therefore, the alleged family settlement as set up by the contesting defendants was bad, firstly, for want of registration and secondly under the special laws of transfer as provided in Regulation III of 1872. In these circumstances, the contesting defendants and others could not acquire any title to the suit properties by the alleged family settlement of the 9th Baisakh, 1354 B. S.
19. There remains now to consider the last submission of Mr. Ghosal that the family settlement has been acted upon by the parties concerned and they derived benefits under the transaction; and, as such, they cannot be permitted to resile from that position. This involves the application of the principle of estoppel to the facts of the present case. Estoppel is a rule of evidence by which a person is not allowed to allege and prove a thing under certain circumstances. The application of this principle in India is embodied in Section 115 of the Evidence Act, which provides that when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. This principle cannot be applied to the facts of the pregent case. Before the plaintiff could be held bound, it must be established that the defendants have acted on her representation, act or omission. On account of the plaintiff the defendants' position has not altered even the least. Jadu Man-dal made disposition of his properties. He gave some properties to the plaintiff for her maintenance and the rest to defendants 1 to 4 after keeping some property for himself. The plaintiff had no hand in the matter. Therefore, in my judgment, she is not estopped from proving the fact that the impugned transaction did not confer any title on defendants 1 to 4. and the properties remained the properties of Jadu Mandal, which vested in his legal heirs after his death.
20. So far as the equitable principle of estoppel is concerned, it has also no application to the present case. It is well settled that equity cannot override the provisions of a statute and there cannot be estoppel against the statute. The matter came up for consideration before the Privy Council in Ariff v. Jadunath Majumdar, 58 IA 91-AIR 1931 PC 79. Lord Russell of Killowan, while delivering the judgment of the Board, observed (at page 104) as follows:
"Their Lordships do not understand the dicta to mean that equity will hold people bound as if a contract existed, where no contract was in fact made; nor do they understand them to mean that equity can override the provision of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts shall be conferred only by a registered instrument."
The above principle laid down by the Privy Council has been consistently followed in India since then. The law required here the registration of the deed, Exhibit A-1, for the transference of title from Jadu Mandal to the persons named in it even if it assumed that the document evidences a family settlement. As no registered document was procured, the persons claiming under the document cannot be said to have acquired title even though there was no such instrument. Mr. Ghosal has drawn our attention to the observation made by Mukherji and Bose, JJ., in Khantamoyee Devi v. Hridaya-nanda Bhattacharjee, 48 CLJ 489 at p. 494 = (AIR 1929 Cal 149) that -
"a partition or a settlement of a disputed or doubtful claim is a valid and binding arrangement between the parties thereto and the parties themselves or those that claim under or through them are not permitted to deny, ignore or resile therefrom. On equitable principles such partition or settlement is also binding on persons, who, though they may not have been either parties thereto or have derived their interest from such parties have acted upon it or have derived some benefit from it."
The application of this principle, however, depends upon the facts and circumstances of a particular case. Their Lordships themselves have made it clear that the principle is not of universal application and it was not applied to the facts of that case even. I have held above that the transaction could not be regarded as a family settlement. As a deed of gift there is a restriction in Regulation III of 1872 to make such a disposition of the property and Jadu Mandal could not have done so. Even as a family settlement the document is required to be registered under the provisions of Indian Registration Act for the transference of title from Jadu Mandal to defendants 1 to 4. In the circumstances of this case, therefore, the principle of equitable estoppel, as observed in the Calcutta case, cannot be called in aid of the defendants.
21. Mr. Ghosal has further drawn our attention to the observation of the Supreme Court in AIR 1966 SC 323 wherein it has been observed as follows :--
"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 the transaction was of a kind which Kadma Kuer could not enter into and was therefore invalid."
In that case there was a family settlement by which doubtful claims of several persons were settled by a document. There is nothing to indicate that, there, the document by which the family settlement as made was not executed in the manner provided by law. Therefore, this case also is of no assistance to Mr. Ghosal. Moreover, the plaintiff could not be said to have derived some benefit under the transaction. Being his widowed daughter-in-law, Jadu Mandal was maintaining her. As he had grown very old, it was not possible for him to manage the entire affair. Therefore, he gave her some land for her maintenance instead of he himself maintaining her from the usufruct of the entire land. I have already held that she had no hand in the arrangement. She had no right to the properties of Jadu Mandal at that time and so there was no option for her but to submit to the arrangement. Therefore, equitable estoppel could not operate in her way. In my judgment, there is no substance in this submission of Mr. Ghosal either. Thus, all the contentions raised by Mr. Ghosal fail and there is no merit in this appeal.
22. In the result, the judgment and the decree of the court below are hereby affirmed and the appeal is dismissed withcosts.
G.N. Prasad, J.
23. I agree.