Kerala High Court
Mythili Nalini vs Kowmari And Ors. on 12 October, 1990
Equivalent citations: AIR1991KER266, AIR 1991 KERALA 266, (1991) 2 RRR 483 (1991) 2 HINDULR 689, (1991) 2 HINDULR 689
JUDGMENT P.K. Shamsuddin, J.
1. Defendants 2 and 3 in O.S. No. 87 of 1977 on the file of the Court of Subordinate Judge, Alleppey, are the appellants in A.S. No. 321 of 1982 and the 1st plaintiff in the same suit is the appellant in A.S. No. 357 of 1982. Suit is for partition.
2. Plaintiffs and defendants 1 to 3 are children of Kunju Kunju who died in 1976. Mythili is the wife of Kunju Kunju and she died in 1975. Plaint A schedule property originally belonged to Mythili. Her right devolved on her children and each of them was entitled to 1/5 share. Buildings in A schedule are B schedule items 1 and 2. Item No. 1 is the residential building and item 2 is a workshop. These buildings were constructed by Kunju Kunju. Plaint C schedule building belonged to 4th defendant. Kunju Kunju was a tenant under the former owner of the building and he was conducting business in harmonium for the last forty years. The business accessories are C schedule item No. 2 and kept in the workshop. In 1975 Kunju Kunju executed a registered Will whereby he bequeathed his rights to the Ist defendant. Plaintiffs and defendants 2 and 3 had 1/4th share in the assests left by Kunju Kunju. Negotiations for partition failed and according to plaintiffs it was in those circumstances that the suit was filed.
3. In the written statement filed by Ist defendant, he admitted that plaint A schedule property belonged to Mythili, that Kunju Kunju, the husband of Mythili put up the building in A schedule and that Kunju Kunju executed a Will in 1975 bequeathing the building in A schedule to the other co-shares. According to the Ist defendant the workshop was put up by him at his own expenses in A "schedule property. The tenancy right in C schedule item No. 1 is in the name of Kunju Kunju. The camera works started in partnership in 1967 was sold to him and he attorned to the landlord and was paying rent. He agreed to purchase the property at a price of Rs. 42,000/- and all the shares were bound by the agreement. The goodwill of harmonium works belonged to him and provisions of the Will executed by Kunju Kunju were superseded by an agreement dated 21-11-1976 referred to above. The moveable in C schedule belonged to him. He reported the building by spending Rs. 3,500/- and he had special right over the building. He constructed the workshop at a cost of Rs. 15,000/- and the agreement being a family arrangement it is binding on all the co-sharers. Defendants 2 and 3 filed a written statement supporting the plaint allegations.
4. On a consideration of the oral and documentary evidence in the case, the Court below found that Ext. B1 is a family arrangement and that thereunder the Ist defendant was entitled to purchase the property for Rs. 42,000;-. Accordingly the Court below passed a preliminary decree accepting the family arrangement and allowing the Ist defendant to purchase the B schedule property at the agreed price of Rs. 42,000/-. It also found that out of that Rs. 42,000/- the Ist plaintiff is entitled to Rs. 8,000/-, 2nd plaintiff is entitled to Rs. 12,000/-, 2nd defendant is entitled to Rs. 6,000/- and 3rd defendant is entitled to RS 8,000/- towards the value of their share in the property. Ist defendant was directed to pay or deposit the amounts within a period of two months from the date of judgment and to apply for passing a final decree. It also provided that on failure to deposit the amount, the sharers are at liberty to apply for passing of final decree.
5. Learned Advocate-General challenged the finding of the Court below. He contended that all the parties including the Ist defendant accepted the genuineness of the Will, thai Ext. B1 is not a family arrangement but can only be treated as an agreement for sale of the share for the stated consideration and that the Ist defendant cannot enforce the agreement in a suit for partition. Learned Advocate-General also contended that the Court below went wrong in holding that Ext. A1 Will was superseded by Ext. B1 agreement. He contended that the Will came into force on the death of the testator and no question of supersession of the Will arises. Though the Court below has used the expression "superseded" it appears to me that it only meant that there was a family arrangement subsequent to the death of the testator which is binding on all members and that it has to be given effect to notwithstanding the terms of Ext. Bl, for from superseding the Will, recognises the bequest.
6. Ext. B1 was executed by Ist defendant, plaintiffs 1 and 2 and defendants 2 and 3, who are the children of Kunju Kunju and Mythili. Document is styled as agreement relating to partition and not as an agreement for sale of the property.
7. In order to appreciate the contentions of the parties it will be profitable to quote the operative portion of the agreement which reads as follows:
(Vernacular matter omitted -- Ed.) Thus the parties reached on agreement relating to partition of assests of the father and mother mentioned in Ext. B1 and it was decided that 50 cents of land in Sy. Nos. 276/14, 276/15A, 276/18B and buildings and improvements thereon belonging to the mother of cxecutents would be purchased by the Ist defendant for a consideration of Rs.42,000/-.'It also provided that out of the consideration amount, Rs. 10,000/- would be paid to the 2nd plaintiff Rs. 8,000/- each would be paid to the Ist plaintiff and the 3rd defendant within 30-6-1977 and that Rs. 6,000/- will be paid to the 2nd defendant before 30-12-1977.
8. The question that falls for consideration is whether Ext. B1 can be treated as a family arrangement or whether it is only on agreement for sale of the rights of the shares for a staled consideration. If it is only an agreement for sale and cannot be considered as a family arrangement, then the Ist defendant can only enforce his right for purchase of the properties by filing a proper suit for specific performance of the contract. On the other hand, if Ext. BI is a family arrangement in settlement of the disputes between the parties it should be given effect to, notwithstanding the provisions contained in Ext. Al. It is not disputed that Ext. B1 was signed by all the sharers.
9. Plaintiffs have not gone to the witness box. However, 2nd defendant was examined as D.W. 1 and he seated that he was giving evidence on his behalf and on behalf of the plaintiff. He deposed that Ext. Al is the Will executed by his father and according to the Will, Ist defendant had no right in the building and harmonium works, that there was negotiation regarding A schedule properties that he signed Ext. B1 agreement and that it was on account of heavy presure from relatives and friends with a view to establishing peace in the family that Ext. B1 was signed. According to him Ext. B1 would have fetched more than Rs. l,00,000/~ and he was not agreeable to sell his right in accordance with the terms of Ext. B1, and that was fixed under Ext. B1 was a conservative value. In the course of cross-examination by the plaintiff, he stated that the amounts stated in Ext. B1 were not paid to anybody. In the course of cross-examination by Ist defendant, he stated that Ext. B1 was executed for the purpose of family settlement and harmonious relationship. He also deposed that Ist defendant desired to have A schedule property, that it was only after the death of his father, that the plaintiff and defendants came to know about the Will and that Ist defendant did not express any opinion about the terms of the Will, but expressed his desire through friends to have A schedule property. Nobody had any objection to it and they decided to give it to Ist defendant with a sacrificing mentality. According to him there was dispute between the parties and mediators intervened for setting the disputes and they demanded that consideration for the property should be fixed at a lower rate. Dispute regarding the consideration was settled by all, though they were not happy about it, for the purpose of maintaining good relationship between the members of the family. He admitted that Ext. B2, is a letter sent by him to the Ist defendant. In that letter 2nd defendant stated that he would go to the house on 20-11-1976 and if the Ist defendant required the presence of his brother-in-law and Ravindran, they would be intimated. It may be recalled that it was on 21-11-1976 that Ext, B1 was executed. It is evident that all the interested parties had discussion on 20-11-1976 and the decision was taken by them all as a family settlement. Ext. B3 is a letter sent by the 2nd defendant to the Ist defendant on 22-11-1976. In that letter, 2nd defendant stated that he was happy that the matter could be settled with the cooperation of all and that he hoped that necessary steps would be taken to implement the decision. It was further stated that everybody appreciated the patience displayed by the Ist defendant's patience towards Revi and that Hevi's conduct was a mental case which required treatment. He further stated that he forgot to take the watch of his father and also expressed his wish to have the ring of his father and that if others had no objection, both the watch and the ring may be sent to him.
10. 2nd defendant in his evidence has explained that it was the first defendant who was referred to as Annan in Ext. B3 and it was referring to the good words of Ist defendant that it was mentioned in Ext. B3 that when a person uses good words others like him. Ext. D4 dated 30-12-1976 is another letter sent by 2nd defendant in reply to the letter of Ist defendant. In Ext. B4 the 2nd defendant stated that he was waiting for the draft of the document. He also enquired about the implementioned of the decision taken and expressed that it would be better to implement the decision quickly and hoped that the Ist defendant would take necessary initiative for the same. 2nd defendant gave evidence that the drafts referred to in the letter related to the draft in respect of A and B schedule properties in terms of Ext. B1. He admitted that the amounts mentioned in Ext. B1 was demanded by Revindran (2nd plaintiff) prior to the date stipulated in the document, but he had not demanded the same. He further deposed that he did not know whether Nalini (Ist plaintiff) and Saraswathi (Defendant No. 3) demanded money and that Inspector of Police intervened and made an attempt to persuade the Ist defendant to give the amounts before the stipulated period, but the Ist defendant was not prepared for that. He stated that he did not remember whether he received a copy of Ext. B6.
11. Ist defendant was examined as D.W. 1. He deposed that his father died on 22-10-1976, that item 1 building in B schedule was constructed by his father, that item 2 in B schedule was constructed by him, that Ext. A1 is a Will executed by his father, that in 1966 his father had executed a Will and in thai Will the father had bequeathed the property to all the children equally, that the terms of Ext. B1 were not agreeable to him and that there for there was dispute between himself and his brothers. He further deposed that A schedule belong to his mother, that he had right in that property, and that his brothers were not agreeable to alter the terms of Ext. A1. There was effort to settle the dispute and the brothers and his relatives took part in the discussion and Ext. B1 was the culmination of the mediation and discussion. According to him, the terms were settled four/five days prior to the execution in Ext. Bl, it was the plaintiffs who demanded that Ext. B1 should be executed and Ext. B1 is in the handwriting of the 2nd defendant, He stated that the Ist attestor to Ext. B1 is one Reghuvaran who was the mother's aunt's son, that the second attestor Bheskaran is uncle and the 3rd attestor Velayudhan is the father-in-law of the 2nd plaintiff, that they took part in the mediation and that he was ready and willing to act in accordance with the terms of Ext. Bl. He further stated that the 2nd plaintiff and 2nd defendant demanded that the amount as per the terms of Ext. B1 should be paid before the time fixed in Ext. Bl, that he sent a letter to the 2nd defendant in regard to this and Ext. B6 is the copy of that letter that under the influence and pressure from the 2nd plaintiff and 2nd defendant Gopidas, Sub-Inspector of Police called him to the police station and that pursuant to their compulsion, he agreed to pay the amount before the date. He had written to other parties also letters similar to Exts. B6 requesting to act according to the terms of the agreement. Ext. B8 is the acknowledgement of the letter sent 'to Ist plaintiff, Ext. B9 is the acknowledgement by 3rd defendant and Ext. B 10 is the acknowledgement of the 2nd plaintiff. He stated that none of them sent any reply to these letters. According to him, the conclusion emerged from the discussion was that the parties should settle the matter without resorting to Court and they should maintain the reputation of the family and it was with that in view that Ext. B1 was executed, and he would not have agreed to the terms of Ext. Al but for the agreement in terms of Ext. B1. According to him, it was on account of the undue influence of the plaintiffs and other children that his father executed Ext. A1 Will for the second time. In the cross-examination by the counsel for the plaintiff he stated that Ext. B1 was executed as a result of joint discussion by all heirs and mediators and that it was not on account of his compulsion that it was executed. To a question whether Ext. B1 was only an agreement for purchase of the sharers of the sharers he replied it was for release of the share of each for consideration. He stated that it was the family ties rather than, the value of property that was given paramount consideration. He admitted that he did not pay consideration at the time of execution of Ext. B1, but stated that he was prepared to perform his part but others were not prepared to do so and they resorted to Court. Though the Ist defendant was cross-examined at length nothing has been brought out to discredit the veracity of his testimony.
12. As I pointed out earlier, the plaintiff has not gone to the witness box. In the light of the evidence of D.W. 1 who was examined for the plaintiff also and D.W. 2 it is clear that Ext. B1 is not a mere contract for sale of the shares belonging to other sharers but a family settlement, setting all the dispute between the parties arrived at in a mediation which was attended to by all heirs and some of their relatives.
13. In Tek Bahadur Bhujil v. Devi Singh Bhuji, (AIR 1966 SC 292), the Supreme Court considered the essential requirements to constitute a family settlement. It was contended in that case that the agreement required registration. Repelling that contention, the Supreme Court observed as follows (at page SC 295; AIR'1966):
"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing a memorandum of what had been agreed upon between the parties, The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess".
After considering the relevant provisions in the document which came up for consideration, the Supreme Court held :--
"The document is nothing but a memorandum of what had taken place and, therefore, is not a document which would require compulsory registration under Section 17 of the Registration Act".
In this case also Ext.B1 evidences only an agreement arrived at by the parties by way of a family settlement settling all the disputes between the parties and therefore it does not require registration.
14. In S. Shanmugam Pillai v. K, Shan-mugam Pillai, AIR 1972 SC 2069, dealing with the family arrangement, the Supreme Court made the following observation :
"Now turning to the plea of family arrangement, as observed by this Court in Sahan Madho Das v. Pandit Mukand Ram, 1955 (2) SCR 22 : (AIR 1955 SC 481), the Courts lean strongly 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. As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealing between the parties."
25. In Maturi Pullaich v. Maturi Nare-sinhan, (AIR 1966 SC 1836) this Court held that although conflict of legal claims in presenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes present or possible, which may not involve legal claims would be sufficient. Members of a joint High family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such on agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts would more readily give assent to such an agreement than to avoid it."
In Shambhu Prasad Singh v. Most Phool Kumari, AIR 1971 SC 1337, also the Supreme Court had occasion to consider the effect of a family settlement. In the course of the judgment, the Supreme Court observed as follows (at page SC 1343; AIR 1971):
"The arrangement under challenge has to be considered as a whole for ascertaining whether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. It is not necessary that there must exist a dispute, actual or possible in the future, in respect of each and every item of property and amongst all members arrayed one against the other. It would be sufficient if it is shown that there were actual or possible claims and counter-claims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging title in one to whom a particular property falls on the assumption (not actual existence in law) that he had an enterior title therein".
In Kisto Chandra Mandal v. Lt. Anila Bala Dasi, (AIR 1968 Pat 487), the Patna High Court considered the scope of family settlement. The Court observed (at page Pat 492; AIR 1968):
"14-A. It is also now 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 have antecedent title or not. It is sufficient that the parties asserted some kind of antecedent title or semblance of title.
XX XX XX XX XX XX XX at page Pat 493; AIR 1968.
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 none, no compromise would be valid."
The foregoing discussion would show that it is not necessary to establish an antecedent title to the person who sets up family arrangement and that it is sufficient if it is shown that there were disputes among the members and the agreement was arrived at by way of settlement of all the disputes between the parties. It is also well settled that the courts will lean to family settlement and uphold such arrangements in the absence of serious vitiating circumstances like fraud.
15. I have already discussed the evidence of D.Ws. 1 and 2, the only oral evidence adduced in the case. It clearly reveals that the Ist defendant had serious dispute relating to the terms of Ext. A1 and B1 is a culmination of a mediation in which all the heirs and some of their relatives actively participated. There is nothing in the evidence of DW. 1 to show that Ext. B1 was executed out of compulsion. The evidence of D.W. 1 and D.W. 2 clearly indicates that all the parties agreed to the terms of Ext. B1 and that it was a family arrangement aimed at resolving all the disputes. It means that it would not be proper to interpret Ext. B1 as a mere agreement for contract of sale of the shares of the sharers in whose favour the bequest is made under Ext. Al. So viewed, the contention of the learned Advocate General that Ext. B1 cannot be enforced in this suit and that the proper remedy of the Ist defendant is to sue for specific performance, if he is so advised, cannot be accepted.
16. Learned Advocate General also argued that Ext. Al confers definite shares on different parties in respect of disputed property and that does not confer any share on the Ist defendant and that in such a situation the concept of family arrangement cannot be imported so as to treat Ext. B1 as a family arrangement. According to the learned Advocate General for this reason also Ext. B1 cannot be enforced as a family arrangement and can only be treated and enforced as a contract of sale of immovable property. I am unable to agree with this contention. As pointed out by me earlier, it is not necessary for the Ist defendant to establish that he had a pre-existing right and it is enough if it is made out that there was some dispute or semblance of claim which was finally settled by the parties through a family arrangement.
17. The above discussion would show that the court below was justified in holding that the Ist defendant was entitled to enforce Ext. B1 as a family arrangement binding on all the parties thereto.
18. Ext. B1 has provided that payments had to be made to plaintiffs 1 and 2 and the 3rd defendant before 30-6-1977. Therefore they arc entitled to interest at the rate of 6% per annum from that date. Similarly Ext. B1 provided that payment has to be made to 2nd defendant before 30-12-1977. Therefore he is also entitled to interest at the rale of 6% from that date. The amounts will he deposited within six weeks from today, if not already deposited. On his failure to deposit the amounts the sharers will be at liberty to apply for passing of final decree for partition. The preliminary decree passed by the court below will stand modified to the above extent. In all other respects it is confirmed.
19. Though a cross-objection has been filed by the 6th respondent, the grounds mentioned therein have not been substantiated.
20. In the result, both the appeals are dismissed, subject to the above modification. The cross-objection is also dismissed. There will be no order as to costs.