Karnataka High Court
B Umapathy S/O Late K M Bhadra Chetty vs Smt Shantha W/O Gunashekaran on 19 September, 2013
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IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
R.F.A.Nos.2091/2007 c/w. 2139/2007 (PAR.)
R.F.A.No.2091/2007
BETWEEN:
B.Umapathy,
S/o.Late K.M.Bhadra Chetty,
Aged about 57 years,
No.148/18, 6th Cross Road,
Wilson Garden,
Bangalore - 27. ...Appellant
(By Sri.Shekarappa, Adv.,)
AND:
1. Smt.Shantha,
W/o.Gunashekaran,
D/o.Late K.M.Bhadra Chetty,
Aged about 62 years,
No. 147/17, 6th Cross Road,
Wilson Garden,
Bangalore - 27.
2. B.Jagannath,
S/o.Late Bhadra Chetty,
Since dead, rep by LRs.
2
a. Savithri,
W/o.Late Jagannath,
Aged about 68 years.
b. Sri.Srinivas,
S/o.Late Jagannath,
Aged about 45 years.
c. Sri.Raj Kanth,
S/o.Late Jagannath,
Aged about 42 years.
d. Sri.Jay Kantha,
S/o.Late Jagannath,
Aged about 40 years.
e. Smt.Kususma,
D/o.Late Jagannath,
Aged about 38 years.
All are R/at.No.146/16,
6th Cross Road,
Wilson Garden,
Bangalore - 27.
(Cause title amended as per Court order dated 29.3.11)
3. Smt.Ponnamma,
Since dead, rep by LRs.
a. K.M.Kandaswamy,
Husband of Late Ponnamma,
R/at.No.20/48, A.S.T.C.Nagar,
Peenaqaram Road,
Dharmapuri - 636 703.
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b. K.Ravi,
S/o.K.M.Kandaswamy,
R/at.No.20/48, A.S.T.C.Nagar,
Peenaqaram Road,
Dharmapuri - 636 703.
c. Smt.Kanthimani,
W/o.A.Selvarajan,
R/at.No.34/40, MIG
Old ASTC-HUDCO
Hosur -635 109
Tamil Nadu.
(Cause title amended as per Court order dated 25.07.12)
4. G.Appajiaiah,
S/o.Gangabasappa,
Aged about 42 years,
No,.49/5, 5th Main, 12th Cross,
Lakkasandra Extension,
Wilson Garden,
Bangalore - 27. ...Respondents
(By Sri.B.V.Krishna, Adv., for R2(a-e);
Smt.Mamatha.G.Kulkarni, for SPS Assts., for R2;
Sri.Gangadharaiah, Adv., fro R3(a-c);
Sri.Papireddy, Adv., for R4
R-1 Served)
******
This appeal is filed under section 96 r/w.O 41 of CPC
against the judgment and decree dated 5.7.2007 passed in
O.S.No.2868/1988 on the file of the I Addl. City Civil and
Sess. Judge, Bangalore (CCH-2), decreeing the suit for
partition, permanent injunction and declaration.
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R.F.A.No.2139/2007
BETWEEN:
B.Jagannath,
S/o.Late K.M.Bhadrachetty,
Since dead, rep. by his LRs.
a. Smt.J.Savithri,
W/o.Late Jagannath,
Aged about 68 years,
R/at.No.4, 1st Floor, 1st Cross,
Shankara Layout,
Najambha Agrahara,
T R Mill, Bangalore - 18.
b. J.Sreenivas,
S/o.Late Jagannath,
Aged about 48 years,
R/at.D.No.86, SBI Officers Residency,
Behind BWSSB Reservoir,
Kodichikkanahaali,
Bangalore - 76.
c. J.Rajakanth,
S/o.Late Jagannath,
Aged about 43 years,
R/at.No.4, 1st Floor, 1st Cross,
Shankara Layout,
Najambha Agrahara, T R Mill,
Bangalore - 18.
d. J.Jaikanth,
S/o.Late Jagannath,
Aged about 41 years,
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R/at.D.No.21, 20th Street, DAE Township,
Kalpakkam,
Tamil nadu - 603 102.
e. J.Kusuma,
D/o.Late Jagannath,
Aged about 39 years,
R/at.D.No.142, 1st Floor,
Nagashettyhalli,
Bangalore - 94. ...Appellants
(Cause title amended as per court order dated 29.3.2011)
(By Sri.Rajkanth,party-in-person;
Sri.B.V.Krishna, Adv.,)
AND:
1. Smt.Shantha,
W/o.Gunashekaran,
D/o.Late K.M.Bhadrachetty,
Major. No.147/17, 6th Cross,
Wilson Garden,
Bangalore - 27.
2. G.Appajiaiah,
S/o.Gangabasappa,
No,.49/5, 5th Main, 12th Cross,
Lakkasandra Extension,
Wilson Garden,
Bangalore - 27.
Now residing at portion of
146/16, 1st Cross,
Wilson Garden,
Bangalore.
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3. B.Umapathi,
S/o.Late K.M.Bhadra Chetty,
Major,
No.148/18, 6th Cross Road,
Wilson Garden,
Bangalore - 27
4. Smt.Ponnamma,
Since dead, rep by LRs.
a. K.M.Kandaswamy,
Husband of Late Ponnamma,
R/at.No.20/48, A.S.T.C.Nagar,
Peenaqaram Road,
Dharmapuri - 636 703.
b. Smt.Kanthimani,
W/o.A.Selvarajan,
R/at.No.34/40, MIG
Old ASTC-HUDCO
Hosur -635 109
Tamil Nadu.
c. K.Ravi,
S/o.K.M.Kandaswamy,
R/at.No.20/48, A.S.T.C.Nagar,
Peenaqaram Road,
Dharmapuri - 636 703. ...Respondents
(Cause title amended as per court order dated 25.7.2012)
(By Sri.M.Ramakrishna, Adv., for C/R-1;
Sri.G.Papi Reddy, Adv., for R2;
Sri.Harish.H.V., Adv., for R3)
*******
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This appeal is filed under section 96 of CPC against
the judgment and decree dated 5.7.2007 passed in
O.S.No.2868/1988 on the file of the I Addl. City Civil and
Sessions Judge, Bangalore (CCH-2) decreeing the suit for
partition, permanent injunction and declaration.
These appeals coming on for Hearing this day, the
Court delivered the following:-
JUDGMENT
These two appeals by the defendants 1 and 2 are directed against the judgment and decree, dated 5.7.2007, passed by the Addl. City Civil and Sessions Judge, Bangalore city, in O.S.No.2868/1988.
2. By the impugned judgment and decree, the Trial Court has decreed the suit of the plaintiff granting 1/4th share to the plaintiff in item Nos.1 to 3 of the suit schedule properties. The defendants 1 and 2 have been restrained from alienating the suit schedule properties in any manner. It is declared that the sale-deed executed by the defendant 8 No.1 in favour of the defendant No.4 in respect of a portion of the property bearing No.146/16 is not binding on the plaintiff.
3. Aggrieved by that, the first defendant has filed RFA.No.2139/2007 and the second defendant has filed RFA.No.2091/2007.
4. The appellants are defendants 1 and 2. The first respondent is the plaintiff. Respondents 3 and 4 in RFA No.2091/2007 are defendants 3 and 4. For the sake of convenience, the parties will be referred to with reference to their rank in the original suit in O.S.No.2868/1988.
5. Briefly stated the facts are:
The first respondent -plaintiff filed suit in O.S.No.2868/1988 for partition and separate possession of the suit schedule properties and for declaration that the sale-deed dated 13.12.1982 executed by the first defendant in favour of the fourth defendant in respect of a portion of 9 the property bearing No.146/16 is not binding on the plaintiff. The case of the plaintiff was that she is the daughter of late K.M.Bhadrachetty. The defendants 1 and 2 are her brothers. The third defendant is her sister. The properties bearing Nos.146/16, 147/17 and 148/18 situated at 6th Cross, Wilson Garden, Bangalore -27 are the self-
acquired properties of late K.M.Bhadrachetty. The suit schedule properties were purchased by
Sri.K.M.Bhadrachetty as vacant sites through registered sale-deed dated 19.3.1947 out of his own earnings.
6. It is stated, the plaintiff's father Sri.K.M.Bhadrachetty died on 9.9.1979 intestate leaving behind the plaintiff and the defendants 1 to 3 as his LRs. The mother of the plaintiff Smt. Akkamma died intestate on 12.4.1982. After the death of K.M.Bhadrachetty, the plaintiff and the defendants 1 to 3 have become the joint owners of the suit schedule properties.
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7. It is stated, the property bearing No.147/17 has been occupied by three tenants. The plaintiff with her family members is residing in a portion of the property bearing No.147/17. The plaintiff is in joint possession of the suit schedule properties. The first defendant is in occupation of the property bearing No.146/16. The second defendant is in occupation of the property bearing No.148/18. The defendants 1 and 2 are collecting rents from the tenants. They are not paying any amount to the plaintiff. It is stated that late K.M.Bhadrachetty and Smt.Akkamma had left cash to the tune of nearly `50,000/- by way of fixed deposits in various banks. After their death, the first and second defendants have made arrangements to draw the entire amount without giving the plaintiff her legitimate share. It is stated, the plaintiff requested the first and the second defendants to divide the suit schedule properties and give her share. The defendants refused to give her share. Therefore, legal 11 notice dated 18.4.1988 was issued calling upon the defendants to divide the suit schedule properties and not to alienate the suit schedule properties. The second defendant has sent reply on 22.4.1998, but the first defendant has not replied the notice.
8. The second defendant in his reply has stated that during the lifetime of K.M.Bhadrachetty as far back as 1969, late K.M.Bhadrachetty had effected division of the property and put him in separate possession of the property bearing No.148/18. The plaintiff has denied the division and also that she was a consenting witness for partition. It is stated, the documents are got-up, concocted and fabricated.
9. It is stated that the first defendant has alienated a portion of the property bearing No.146/16 in favour of the fourth defendant through registered sale-deed dated 13.12.1982 to defraud the legitimate share of the plaintiff. 12 The sale in favour of the fourth defendant does not bind the plaintiff. Therefore, the plaintiff has prayed for partition and separate possession of the suit schedule properties and for declaration that the sale-deed dated 13.12.1982 does not bind the plaintiff.
10. The first defendant has filed his written statement denying the plaint averments and contending that the suit is not maintainable. The properties have been acquired out of the joint efforts and contribution of the defendants 1 and 2. Thereafter, construction has been put up. It is denied that the suit schedule properties are self- acquired properties of late K.M. Bhadrachetty. It is also denied that the plaintiff is the joint owner of the suit schedule properties. It is stated, the defendant No.1 has not let out his portion of the premises to any one and he has no knowledge of the rents collected in respect of the other partitions. He is not receiving any rents. The allegations regarding fixed deposits by K.M.Bhadrachetty 13 and Akkamma have been denied. It is stated that the first defendant does not know anything about the jewels. At the time of the death of his mother and father, the first defendant had already separated from the family. It is denied that the defendants 1 and 2 have made hasty attempts to alienate the properties. It is stated, in 1968 late K.M.Bhadrachetty had divided the property acknowledging the efforts of defendant No.1 in the development and retention of the schedule properties. The palupatti was made in front of the panchayathdars and all the children of Bhadrachetty including the plaintiff are signatories to the palupatti. The plaintiff has accepted the possession of the first defendant in O.S.No.1074/1985. The plaintiff had knowledge of the division in the year 1968. She is a signatory to the palupatti. The suit is barred by limitation. The plaintiff has slept over the matter for more than 12 years. Thereafter, she has filed this suit. The property was allotted to the share of the first defendant in 14 the year 1968. Therefore, the plaintiff cannot question the alienation. It is denied that the plaintiff is in joint possession of the suit schedule properties. The plaintiff is not entitled for 1/4th share as claimed by her. The first defendant is the absolute owner of item No.1 of the suit schedule properties. During the lifetime of Bhadrachetty, katha has been transferred in the name of the first defendant. Similarly, item No.3 of the suit schedule properties has fallen to the share of the second defendant. Therefore, the first defendant has prayed for dismissal of the suit.
11. The second defendant has filed his written statement denying plaint averments and contending that it is out of the contribution of defendant No.2 and their father the properties have been acquired. It is denied that out of the self-earnings of Bhadrachetty, the construction was put up. The suit schedule property is not the exclusive property of Bhadrachetty. The plaintiff has no share in the suit 15 schedule properties. There are tenants in the property bearing No.147/17 and the rent paid is not more than `150/-. The plaintiff is also one of the tenants. She is squatting on the property without paying any rents.
12. The second defendant is residing at No.148/18. The first defendant is residing in a portion of the property bearing No.146/16. The second defendant has replied the notice denying the right of the plaintiff to claim any share in the suit schedule properties.
13. It is stated, as far back as 1969, during the lifetime of late Bhadrachetty, item Nos.1 and 3 of the suit schedule properties were given to the first and second defendants respectively by virtue of the release deed. Ever since then, the first and second defendants are residing separately. Item Nos.1 and 3 are exclusive properties of the first and second defendants. The plaintiff attested the documents being a witness. The suit is barred by 16 limitation. The plaintiff has no right to claim any right, title or interest in the suit schedule properties much less 1/4th share. Therefore, the second defendant has prayed for dismissal of the suit.
14. The fourth defendant has filed his written statement denying the plaint averments and contending that he is the lawful owner in possession of the property purchased by him through registered sale-deed dated 13.12.1982. The transfer of a portion of the property bearing No.146/16 situated at 6th Cross, Wilson Garden, Bangalore, in favour of the defendant No.4 was within the knowledge of the plaintiff. The khatha stands in the name of the defendant No.4. He has constructed a dwelling house spending huge amount. He is a bona fide purchaser.
15. During the lifetime of Sri.K.M.Bhadrachetty, the site bearing No.146/16 was given to the first defendant in a family settlement effected on 27.1.1968. The adjoining site 17 bearing No.148/18 was given to the second defendant in the family settlement. Site No.147/17 was retained by Sri.K.M.Bhadrachetty. After the family settlement, the katha of the site bearing No.146/16 was transferred in the name of the first defendant. He was assessed for tax. The plaintiff is a signatory to the family settlement dated 27.1.1968. Suppressing these facts, the plaintiff has filed this suit. She is not entitled for any share. Therefore, the fourth defendant has prayed for dismissal of the suit.
16. The Trial Court has framed the following issues:
1. Whether the plaintiff proves that the property is described in the plaint schedule are the properties of Bhadra Chetty and she is entitled for 1/4th share as a successor?
2. Whether the plaintiff proves that the alleged family arrangement is got up, fraudulent and not binding?18
3. Whether the defendants 1 and 2 proves that there was a family arrangement during the life time of Bhadra Chetty?
4. Whether the defendants 1 and 2 prove that the property is not the absolute property of Bhadra Chetty and purchased out of the joint funds of Bhadra Chetty and defendants 1 and 2?
5. Whether the defendant No.2 proves improvements and expenditure incurred as contended in the written statement by the 2nd defendant?
6. Whether the 4th defendant proves that it is the absolute property of 1st defendant and he is a bonafide purchaser of the property?
7. Whether the suit is maintainable in law?
8. What decree or order?
Additional Issue:
1. Whether the D1 and 2 proves that the suit of the plaintiff is barred by law and limitation?19
17. The Trial Court has answered issue Nos.1, 2 and 7 in the affirmative, issue Nos.3, 4, 5 and 6 and additional No.1 in the negative and consequently, has decreed the suit granting 1/4th share to the plaintiff in the suit schedule properties and declaring that the sale-deed dated 13.12.1982 executed in favour of the defendant No.4 is not binding on the plaintiff.
18. Aggrieved by that, the appellants i.e., the defendants 1 and 2 have filed these two appeals.
19. The learned counsel for the appellant in RFA.No.2091/2007 contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that there is no explanation as to why signature was put on exhibits D1 and D2. The plaintiff admits her signatures on exhibits D1 and D2. Through exhibits D1 and D2, item 20 Nos.1 and 3 of the suit schedule properties have been given to the share of the defendants 1 and 2 in the year 1968 and 1969. The plaintiff admits the possession of the defendants 1 and 2. Exhibits D1 and D2 have been acted upon. Katha has been transferred. The defendants 1 and 2 are in possession and enjoyment of item Nos.1 and 3 of the suit schedule properties since 1968 and 1969. Further he submitted that one property i.e., item No.2 bearing No.147/17 was retained by K.M.Bhadrachetty. He has settled items 1 and 3 of the suit schedule properties in a family arrangement. The plaintiff is a party to the family arrangement. Therefore, the plaintiff cannot contend that she is entitled for any share in item Nos.1 and 3 of the suit schedule properties. The evidence on record clearly shows that there was a family arrangement in the year 1968 and 1969. It cannot be disturbed at this stage. Further he submitted that it is only the property bearing No.147/17 21 which is available for partition. Therefore, the impugned judgment and decree cannot be sustained in law.
20. The learned counsel for the appellant in RFA.No.2139/2007 contended that there was a family arrangement in the year 1968 and 1969. Item No.1 has been given to the share of the first defendant and item No.3 has been given to the share of the second defendant. It cannot be disturbed at this stage. It is only the middle portion i.e., property bearing No.147/17 which is available for partition and all the children of late K.M.Bhadrachetty are entitled for a share. He placed reliance on the following decisions:
AIR 1976 SC page 807 1955 SCR page 22 (2011) 9 SCC page 788
21. Sri.J.Rajkant, one of the LRs., of the first defendant has filed his written submissions contending that 22 there was a family arrangement. The plaintiff has admitted her signature in the palupatti dated 20.5.1969. The plaintiff and the second defendant were the defendants in O.S.No.1074/1985. They have admitted that the property bearing No.146/16 and property bearing No.148/18 were partitioned and only property bearing No.147/17 is available for partition. Therefore, the plaintiff cannot now contend that she is entitled for share in the suit schedule properties. It is contended that the property bearing No.146/16 was given to the share of the first defendant B.Jagannath in the family arrangement during the life time of K.M.Bhadrachetty and katha has been transferred in the name of B.Jagannath. B.Jagannath has put up construction. The plaintiff has slept over the matter for more than 12 years. The plaintiff has admitted her signatures on exhibits D1 and D2. The Trial Court has not considered the admission made by the plaintiff and the second defendant in O.S.No.1074/1985. The plaintiff and 23 second defendant have admitted that there was a family arrangement in the year 1968 and 1969. In the family arrangement, item No.1 of the suit schedule properties has been given to the share of the first defendant and the item No.3 of the suit schedule properties has been given share of the second defendant. It cannot be disturbed at this stage. Therefore, the plaintiff is not entitled for any share. The impugned judgment and decree passed by the Trial Court cannot be sustained in law and it is liable to be set- aside.
22. The learned counsel for the first respondent - plaintiff contended that the impugned judgment and decree does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the impugned judgment and decree does not call for interference. He also submitted that the second defendant has taken inconsistent stand that the property was given by 24 virtue of the release-deed and he is in adverse possession. He also submitted that the Trial Court has rightly held that the suit schedule properties are the self-acquired properties of late K.M.Bhadrachetty and has granted 1/4th share to the plaintiff in the suit schedule properties. He also submitted that exhibits D1 and D2 are doubtful documents and they cannot be relied upon as there are not registered. Placing reliance on the decision reported in ILR 2010 Karnataka page 2748, the learned counsel for the first respondent submitted that unregistered document cannot be relied upon. Further placing reliance on the decision of the Hon'ble Supreme Court reported in (2011) 9 SCC page 788, the learned counsel for the first respondent submitted that the plaintiff is entitled for equal share in the suit schedule properties. He, therefore, submitted that the impugned judgment and decree does not call for interference.
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23. I have carefully considered the submissions made by the learned counsel for the parties.
24. The points that arise for my consideration are; (1) Whether the plaintiff is entitled for 1/4th share in all the suit schedule properties?
(2) Whether the impugned judgment and decree calls for interference?
25. Point Nos. 1 and 2 are considered together.
26. The relationship between the plaintiff and the defendants 1 to 3 is not in dispute. The plaintiff and the defendant No.3 are the daughters of late K.M.Bhadrachetty. The defendants 1 and 2 are the sons of late Bhadrachetty. The suit schedule properties i.e., item Nos.1 to 3 have been acquired through registered sale deed dated 19.3.1947 in the name of K.M.Bhadrachetty is also not in dispute. The plaintiff contends that the suit schedule properties are the self-acquired properties of late K.M.Bhadrachetty. The 26 defendants 1 and 2 contend that the suit schedule properties are joint family properties. The defendants 1 and 2 have contributed for improving the properties. Recognizing that late K.M.Bhadrachetty, during his lifetime, has settled the property as per exhibits D1 and D2 in a family arrangement.
27. The oral evidence of the parties support their respective stand. Therefore, it is proper to consider the documentary evidence. The relevant documents are exhibits D1 and D2. Exhibits D1 and D103 are one and the same. Ex.D1 is dated 27.1.1968. Through Ex.D1, the first defendant has separated from the family in presence of the panchayatdars. It is stated in Ex.D1 that the first defendant has worked hard and helped to acquire the property. Item No.1 i.e., property bearing No.146/16 has been given to the share of the first defendant. The family members and the panchayathdars have signed Ex.D1. The plaintiff has also signed Ex.D1.The signature of the plaintiff is at Ex.D1(e). 27 Similarly through Ex.D2 dated 20.5.1969 item No.3 i.e., property bearing No.148/18 has been given to the share of the second defendant. The panchayathdars and family members have signed Ex.D2. The plaintiff has also signed Ex.D2. It is marked as Ex.D2(k). Subsequently, exhibits D1 and D2 have been notarized. Ex.D3 is the affidavit of K.M.Bhadrachetty and the defendants 1 and 2. It is dated 5.1.1977. In the said affidavit, it is stated that K.M.Bhadrachetty, the defendants 1 and 2 were members of the joint family and item No.1 property has been given to the share of the first defendant and item No.3 property has been given to the share of the second defendant in presence of the panchayathdars on 27.1.1968 and 20.5.1969 respectively.
28. A careful reading of exhibits D1, D2 and D3 clearly indicate that in a family arrangement item No.1 of the suit schedule properties has been given to the share of the first defendant and item No.3 of the suit schedule 28 properties has been given to the share of the second defendant. The plaintiff is a consenting party to exhibits D1 and D2. The recitals of exhibits D1 and D2 clearly indicate that it was a family arrangement. The learned counsel for the appellant contended that exhibits D1 and D2 are unregistered documents and they cannot be relied upon. It is relevant to refer to the decision of the Hon'ble Supreme Court reported in AIR 1976 S.C. Page 807 regarding family arrangement;
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;29
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) (sic)(sec.17(1)(b)) of the Registration Act and is, therefore, not compulsorily registrable;30
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the 31 word 'family' cannot he construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that the appellant Kale being the grand son of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and also a member of the family. Since respondents 4 & 5 relinquished their claims in favour of the appellant Kale in respect of Khatas 5 & 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 & 5. Apart from this there is one more important consideration, which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the respondents 4 & 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act, 1956, was not passed and respondents 4 & 5 32 would have only a limited interest even if they had got the entire property which would ultimately pass to the appellant Kale after their death. The respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter's son the appellant Kale in equal shares and was, therefore, both fair and equitable. In fact if respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have, therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences. Having regard to the circumstances indicated 33 above, we cannot conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances therefore, it cannot be said that the family settlement was not bona fide. Moreover respondents 4 & 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide. The High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.
35. Another argument advanced by counsel for the respondents was that the family arrangement was not valid because the appellant had absolutely no title to the property so long as Mst. Ram Pyari was in lawful possession of the property as the sole heir to Lachman, and if under the family arrangement any title was conveyed to the appellant, the said conveyance can only be by a registered instrument under the provisions of the Registration Act and the 34 Transfer of Property Act. This argument also, in our opinion, suffers from a serious misconception. We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. In fact a similar argument was advanced before this Court in Tek Bahadur Bhujil's case, (AIR 1966 S.C.
282) relying on certain observations made by Bose, J., in Sahu Madho Das's case, (AIR 1955 S.C.481) but the argument was repelled and this Court observed as follows: -
"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's' money, could not have legally entered into a family arrangement. The observations' are:35
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 recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively xxxxxxx These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is."
The observations of this Court in that case, therefore, afford complete answer to the argument of the learned counsel for the respondents on this point.
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37. We might mention here that the learned counsel for the respondents relied on two decisions of the Patna High Court in Brahmanath Singh Ors. v. Chandrakali Kuer and another AIR 1961 PAT 79 and Mst. Bibi Aziman and another v. Mst. Saleha and others AIR 1963 PAT 62 for the proposition that unless a party to a settlement had an antecedent title the family settlement would not be valid. In view, however, of the decisions of this Court and of the Privy Council the authority of the Patna High Court on this point is considerably weakened and cannot be treated as a good law. The Patna High Court also held that where the document itself contains or embodies the terms of the family settlement it will be compulsorily registrable but not when it speaks of the past. In view of our finding that the mutation petition before the Assistant Commissioner was merely a memorandum of the family arrangement, the authority of the Patna High Court does not appear to be of any assistance to the respondents.
38. Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for 37 the respondents, contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute. In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal, 45 Ind App 118 at p.124 = (AIR 1918 P.C. 70 at p.74) 38 the Privy Council applied the principle of estoppel to the facts of the case and observed as follows:-
"Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a reversioner."
29. It is clear, a bona fide family arrangement which is fair and equitable is binding on the parties. In the present case, Ex.D1 has come into existence in the year 1968. Ex.D2 has come into existence in the year 1969. The plaintiff is a consenting party to exhibits D1 and D2. She has signed exhibits D1 and D2. She was aware of the arrangement made through exhibits D1 and D2. Infact in 39 O.S.No.1074/1985 the plaintiff has admitted that property bearing No.146/16 and property bearing No.148/18 were already divided. In the year 1968 and 1969 family arrangement has been made as per exhibits D1 and D2. It is bonafide. The recitals of exhibits D1 and D2 show that shares were given to the first and second defendants in presence of the panchayatdars and all the family members. Therefore, the submission of the learned counsel for the appellant that exhibits D1 and D2 cannot be relied upon cannot be accepted. Exhibits D1 and D2 are nothing but family arrangement. Therefore, I hold that items No.1 and 3 of suit schedule properties have been given to the share of first and the second defendants through exhibits D1 and D2. Therefore, item Nos.1 and 3 of the suit schedule properties are not available for partition. The defendant No.4 is a bonafide purchaser.
30. Insofar as item No.2 i.e., property bearing No.147/17 is concerned, it was with K.M.Bhadrachetty. He 40 has died intestate. Therefore, all his children i.e., the plaintiff and the defendants 1 to 3 are entitled for equal share in item No.2 of the suit schedule properties. The defendants have produced exhibits D1 to D110 i.e., katha extracts, tax paid receipts, water bills and electricity bills and other documents. They show that the defendants 1 and 2 are in possession and enjoyment of the properties bearing Nos.146/16 and 148/18. Item Nos. 1 and 3 of the suit schedule properties have been given to the share of the defendants 1 and 2 in the family arrangement through exhibits D1 and D2. Therefore, they are not available for partition. Insofar as item No.2 is concerned, it is available for partition. The plaintiff is entitled for 1/4th share in item No.2 of the suit schedule properties along with the defendants 1 to 3. As defendant No.1 is no more, his LRs., are entitled for 1/4th share together. Similarly, the defendant No.3 is also no more, her LRs., are entitled for 1/4th share together.
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31. For the reasons stated above, the impugned judgment and decree cannot be sustained in law. It needs to be modified.
32. Accordingly, the appeals are allowed and the impugned judgment and decree passed by the Trial Court in O.S.No.2868/1998 is hereby set-aside and modified as follows:
The plaintiff is entitled for 1/4th share in item No.2 of the suit schedule properties. The LRs., of the first defendant together, the second defendant and the LRs., of the third defendant together are entitled for 1/4th share each in item No.2 of the suit schedule properties.
Draw up the decree, accordingly.
The parties shall bear their own costs.
Sd/-
JUDGE Bss.