Document Fragment View

Matching Fragments

26. Coming to the third point that is formulated by us, it is no doubt true that amongst Christians, there is no concept of joint family. It is also no doubt true that during the life time of the father, the lineal descendants of the father do not have any pre-existing right. The Trial Court seemed to have been swayed by the judgment of a learned Single Judge of this Court in the case of Aralappa v. Jagannath reported in AIR 2007 Karnataka 91. The Learned Single Judge held that a partition does not confer or create title. If the party to a partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form. The learned Judge held "In the partition, no one transfers title which he possesses in favour of a person who does not possess the title". What has to be seen is that the present case is not a case of partition simplicitor, but it is a case of settlement. A reading of the plaint would disclose that there existed a dispute between the plaintiff and the husband of the defendant No.1 over the marriage of the defendant No.1. The defense of the defendant No.1 would disclose that the husband of the defendant No.1 was not interested to marry owing to his falling health due to bad habits and it was the plaintiff who compelled his son to enter into wedlock and assured him that a share of the property would be given to him which would take care of his dependents in the event of untimely death. Therefore, in essence, the partition deed, Ex.P5, is more of a settlement than a partition. The plaintiff being the owner of the suit properties is entitled to settle his properties in favour of any person. In this regard, it is profitable to refer to the judgment of the Apex Court in the case of Kale and Others vs. Deputy Director Of Consolidation and Others reported in AIR 1976 Supreme Court 807, wherein it is held as under:

The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. To-day when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

(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;