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Partition deed- binding nature

Posted on 24 January 2011 by G. ARAVINTHAN

Court

Madras High Court



Brief



Citation

Amirthavally vs N.Ramasamy



Judgement

This appeal is directed against the judgment and decree dated 9.4.1992 on the file of the learned Additional District Judge, Pondicherry at Karaikal.

 

2. The suit in O.S.No.16 of 1990 was preferred by the first respondent praying for a decree of declaration and consequential injunction in respect of the suit property.

 

3. The parties to this appeal are referred to as "Plaintiff" and "defendants" as per their status before the trial Court.

 

BACKGROUND FACTS:-

 

4. In the plaint in O.S.No.16 of 1990 the plaintiff inter alia contended thus:-

 

(a) The plaintiff and one Muthurkumarasamy are the two sons of Natesa Pillai and his wife Ranganayagi. The parties are Hindus. The parents of the plaintiff and his brother Muthukumarasamy owned and held substantial properties in Thirunallar commune. His father Natesa Pillai died in the year 1947 and his mother Rangnayagi also died subsequently in 1961. The property left by them devolved upon the plaintiff and his brother equally. The properties consisted of a residential house built on the house site belonging to Arulmighu Dharbaranyeswarasamy Devasthanam, Thirunallar, Nanja lands, punja lands and manaicuts.

 

(b) The brothers had entered into an oral partition and got their common inheritance divided according to their value, utility and convenience of enjoyment. Consequent to the oral partition, the parties entered into separate possession and enjoyment. The plaintiff's brother Muthukumarasamy had large commitments and therefore he found it difficult to keep his properties intact. Due to his financial commitments, Muthukumarasamy was under dare necessity to sell some of his properties. The intending purchasers insisted that the plaintiff should also sign as a witness in the document of sale executed by Muthukumarasamy as there was no deed of partition in writing.

 

(c) The plaintiff and his brother Muthukumarasamy prepared the list of respective properties and confirmed in writing the oral partition and separate possession entered into between them earlier. This record is dated 25.3.1976. The said record was relied on for the limited purpose of confirmation of partition. The parties have been exercising their independent rights of ownership over the properties allotted to their shares. They have also been paying taxes separately. Since the document was not registered, patta was not transferred and all the properties were assessed in the name of Muthukumarasamy. Based on the Muchalika dated 25.3.1976, Muthukumarasamy has sold several portions of his properties to third parties. He died as a debtor.

 

(d) The defendants are the widow and children of Muthukumarasamy and they succeed to his estate. Even after the death of Muthukumarasamy, the defendants have alienated certain properties without reference to the plaintiff. The defendants also attempted to disturb his peaceful possession and enjoyment of the property, which made him to file the suit for declaration and injunction.

 

(e) The plaintiff earlier filed a suit in O.S.No.2 of 1987 before the Principal District Munsif praying for a decree of declaration and consequential injunction. However the said suit was rejected on account of his failure to produce the valuation certificate. Since the rejection was under Order 7 Rule 11 of the Code of Civil Procedure, there was no legal prohibition for instituting a separate suit on the basis of the very same cause of action.

 

5. The defendants resisted the suit. In the written statement filed in O.S.No.16 of 1990, the second defendant contended thus:-

 

(a) The brothers have never entered into any oral partition as stated in the plaint. The properties were neither divided, demarcated nor separated from anyone's possession. The parties had never been in separate possession and enjoyment of the various items of properties. There has been no partition at all between the parties. The recording of the oral partition on 25.3.1976 was totally false. The parties have not become independent owners of any of the items of properties.

 

(b) During the life time of Muthukumarasamy, the properties were in common enjoyment. After his demise the parties are cultivating different portions of the properties. Even now there is no partition. Item Nos.5 to 9 of the suit properties are the absolute properties of Muthukumarasamy. After his death the defendants inherited the property and as such they are in absolute possession and enjoyment of the same. The plaintiff has no semblance of right to those items and as such the plaintiff has no right to seek a decree of declaration.

 

(c) Both the plaintiff and his brother Muthukumarasamy arranged to sell the undivided property and it was wrong to state that Muthukumarasamy alone arranged to sell some of the properties. All the sales have been done by the brothers and that itself would go to show that there was no partition in the family. Accordingly the second defendant prayed for dismissal of the suit. ISSUES:-

 

6. The learned trial Judge on the basis of the pleadings framed the following issues.

 

(i) Whether the alleged confirmation of partition dated 25.3.1976 is true, valid and acted upon?

 

(ii) Whether items Nos.5 to 9 of the plaint schedule belonged to the defendants and the plaintiff is not entitled to claim the same?

 

(iii) Whether the plaintiff is entitled to the prayer for absolute right over all the suit properties?

 

(iv) Is the plaintiff entitled for a permanent injunction against the defendant?

 

(v) Is the suit properly valued for the purpose of court fee and jurisdiction?

 

(vi) To what relief are the parties entitled?

 

EVIDENCE:-

 

7. Before the trial Court the plaintiff was examined as P.W.1 and Exs.A.1 to A.11 were marked on his side. The second defendant was examined as D.W.1 and Exs.B.1 to B.9 were marked.

 

8. (a) The plaintiff in his evidence as P.W.1 deposed that the document in Ex.A.1 dated 25.3.1976 was executed ten years after the oral partition between the parties. The properties as found in Ex.A.1 was taken separate possession immediately after the oral partition and they have been in separate enjoyment. Subsequent to Ex.A.1 the predecessor-in-interest of the defendants sold his right in favour of third parties. The purchasers refused to purchase the property unless the document contains his signature. Accordingly he signed in the documents. The subsequent sale deeds executed by Muthukumarasamy as per Exs.A.6 and A.7 contains a recital about the document dated 25.3.1976. He also deposed that the oral partition and subsequent separate possession were known to the local people.

 

(b) During his cross examination, P.W.1 admitted that the properties in item Nos.5 to 9 were in the name of his deceased brother. However they have entered into a partition arrangement which also included those properties. According to P.W.1 there was a partition deed in the year 1967. Since he felt that the said partition deed was not in accordance with law, he wanted a new partition deed to be executed and registered and as such Ex.A.1 was executed.

 

(c) While executing the new deed in the year 1976, two minor changes were made as his brother Muthukumarasamy had already sold some of his properties during the intervening period. The properties sold by his brother Muthukumarasamy to six persons under six different sale deeds were the properties allotted to him as per Ex.A.1. In those documents also P.W.1 affixed his signature as a witness. P.W.1 also denied the suggestion that item Nos.5 to 9 in the suit schedule exclusively belonged to Muthukumarasamy and after his death to the defendants.

 

9. (a) The second defendant was examined as D.W.1. During his examination the second defendant admitted that Ex.A.1 was executed and it was signed by his father. However according to him the arrangement as made therein did not take place and it was not acted upon. In his cross examination he admitted that, in all the transfers made by his father, the partition deed in Ex.A.1 was referred to.

 

(b) D.W.1 also admitted that he has not seen Ex.A.1 earlier and he saw the same only in court and as such there was no occasion for him to physically verify the averments in Ex.A.1. He also stated that both his father and the plaintiff were enjoying the property equally and jointly in accordance with their shares. After the death of Muthukumarasamy, the arrangement for enjoying the property equally was followed by the plaintiff and the defendant in so far as four items were concerned. However the plaintiff was not entitled to the property in item Nos.5 to 9. In short D.W.1 deposed that there had been no partition either oral or otherwise between the plaintiff and his brother in respect of item Nos.1 to 4.

 

THE JUDGMENT OF THE JUDGE:-

 

10.(a) The learned trial Judge found that the properties were purchased in the name of the parents as well as in the name of Muthukumarasamy even prior to the introduction of the Hindu Succession Act and other laws to the Union Territory of Pondicherry and as such the Customary Hindu law as applied to the Hindus of Pondicherry during the French Regime (Coramandal Hindu Law) governs the parties, when the properties were purchased. The document in Exs.B.1 to B.3 are documents drawn by the "Notaries" under the French system. Therefore when the brothers have common inheritance "communaute" is constituted. The head of the family is presumed to be the owner of the property even if it is purchased in the name of the sons or other members of the "communaute". When the descendants of a common ancestor live in common, the "communaute" is presumed. The learned trial Judge found that the property originally belonged to the parents of the plaintiff and Muthukumarasamy and from them both the brothers inherited the property.

 

(b) The common living of Muthukumarasamy and the plaintiff is an admitted fact and it is also well established by Exs.A.1 and B.6. The learned trial Judge on the basis of the recitals in Ex.A.1 and in the light of the oral evidence tendered by P.W.1 arrived at a factual finding that Ex.A.1 was nothing but a confirmation of the oral partition and as such it was genuine and true. With respect to the property in item Nos.5 to 9 the learned trial Judge found that the said property is also presumed to be that of a "communaute". The contention of the defendants that item Nos.5 to 9 stood in the name of Muthukumarasamy as per Exs.B.1 to B.3 and as such the property has been in their exclusive possession was found to be against the recitals of Ex.A.1 which was executed by none other than Muthukumarasamy.

 

(c) The trial court also found that in Exs.A.6 and A.7, Muthukumarasamy himself has stated about the execution of Ex.A.1 and the property given to his brother out of the property which originally stood in his name. Accordingly the trial court rejected the contention raised by the defendants with respect to item Nos.5 to 9 and answered the issues in favour of the plaintiff.

 

11. The judgment and decree dated 9.4.1992 is the subject matter of this appeal.

 

12. The subsequent purchaser was impleaded as second respondent in the appeal on the basis of his application and he is referred to as "purchaser."

 

SUBMISSIONS:-

 

13. The learned Senior counsel appearing on behalf of the defendants contended thus:-

 

(i) The document in Ex.A.1 is admittedly an unregistered document and it was also not properly stamped. Therefore the learned trial Judge erred in placing reliance on the said document.

 

(ii) Ex.A.1 being an unregistered document it was not admissible in evidence as per Section 17 of the Registration Act and as such the learned trial Judge committed serious illegality by marking the said document disregarding the objection raised by the defendants. (iii) The document in Exs.A.6 and A.7 of course contains an averment that the property was partitioned on 25.3.1976. Assuming for the sake of argument that there was such a recital in Exs.A.6 and A.7 it would not show as to how the property was partitioned and as such there was absolutely no evidence before the court to give a finding that such and such property was allotted to the share of the respective parties.

 

iv) The Equitable doctrine of Estoppel would not come in the present matter inasmuch as there was no pleading to that effect in the plaint so as to enable the defendants to justify their contention.

 

14. The learned Senior Counsel appearing for the purchaser contended thus:-

 

(i) The document in Ex.A.1 is admittedly an unregistered document. It is also not properly stamped. Therefore objections were raised by the defendants against marking the said document. However overruling the objection, the learned trial Judge marked the document as Ex.A.1. The document being one dividing the property by metes and bounds should have been registered as the value was above Rs.100/-. Therefore no reliance could be placed on Ex.A.1 to show that a partition was arrived at between the plaintiff and Muthukumarasamy.

 

(ii) The purchaser is a bonafide purchaser as he was not aware of the alleged partition or the dispute between the parties. There was no encumbrance recorded in the office of the Sub Registrar and as such the purchaser took the assignment in good faith and for valuable consideration and as such their possession need to be protected.

 

15. The learned Counsel for the plaintiff contended thus:-

 

(i) The document in Ex.A.1 is only a memorandum of understanding recorded in confirmation of the oral partition already made. The document has to be taken in its entirety and on a careful consideration of the entire document it is evident that Ex.A.1 is not a partition deed and it is only a record of the oral partition already made. Therefore there is no requirement of registration for the purpose of marking the said document as an exhibit.

 

(ii) The predecessor-in-interest of the defendants was a party to the document in Ex.A.1. He has obtained certain items of property on the basis of the oral partition. Subsequently those properties were dealt with as his own property which is also evident from Exs.A.6 and A.7. When Muthukumarasamy himself admitted the partition in Exs.A.6 and A.7, his legal representatives are not entitled to contend for the position that there was no such partition and item Nos.5 to 9 absolutely belongs to them.

 

16. Points for consideration:-

 

(a) Whether there was a partition between the plaintiff and Muthukumarasamy in respect of the suit property?

 

(b) Whether Ex.B.1 was a deed of confirmation or a deed of partition requiring registration as per Section 17 of the Registration Act?

 

(c) Relief and cost?

 

DISCUSSION:-

 

17. The plaintiff and his brother Muthukumarasamy owned several items of property. The properties were purchased in the name of his parents as well as in the name of Muthukumarasamy. Those purchases were made prior to the introduction of Hindu Succession Act to the Union Territory of Pondicherry. Therefore the transaction was governed by the Customary Hindu Law as applicable to the Hindus residing in the Union Territory of Pondicherry. Coromandal Hindu Law provides for "communaute" which pre-supposes that there was common inheritance. The head of the family is presumed to be the owner of the property even if the property is purchased in the name of his children. When the descendants of common ancestors live in common there is a presumption of "communaute".

 

18. The core question to be decided in this appeal is as to whether Ex.A.1 was executed as a partition deed or as to whether it was only a record of the oral partition already made between the parties.

 

MATERIAL DOCUMENT  EX.A.1

 

19. The document in Ex.A.1 is described to be a partition deed executed on 25.3.1976. The said document reads thus:

 

"The partition deed unitedly executed between us, viz., 1. Bedhaperumal Pillai alias Muthukumarasamy Pillai and 2. Ramasamy Pillai, sons of late Natesapillai residing on North Street, Thriunallaru, Thirunallaru Commune, Puducherry is as follows:- In Thirunallaru Village, there are Nanja, Punja house sites in the name of my father, mother and the 1st party, Bedhaperumal Pillai alias Muthukumarasamy Pillai.

 

Both of us, effected a partition willingly and have been maintaining families separately. Hereinafter, without having any room for disputes, whatsoever in respect of our properties, we shall possess and enjoy with absolute rights along with right to sale, gift and mortgage, the respective shares of the property as mentioned in the schedule here under by paying their respective tax assessments etc. We had already partitioned the movable properties, cow, calf and furniture. Hereinafter we shall not have any right to any property except to our blood relationship. ...............

 

In accordance with this deed of partition we agreed to register this legally within one month."

 

20. The English translation of the document in Ex.A.1 shows that a partition was effected between the parties and they have been maintaining their families separately. The document proceeds as if it was executed for the purpose of avoiding future disputes in respect of the property. The factum of partition of immovable properties were also found mentioned in the document dated 25.3.1976 and there was a further recital that the parties have agreed to register the deed of partition within one month in accordance with "this deed of partition". A careful perusal of this document clearly shows that it was only a written confirmation of a family settlement made between the parties earlier.

 

21. The plaintiff in his evidence as P.W.1 has also deposed that there was an oral partition between the parties and the subsequent document dated 25.3.1976 was necessitated as some of the purchasers took assignment from Muthukumarasamy insisted that he should also sign in the sale deed.

 

22. It is true that Section 17 of the Registration Act mandates that non-testamentary instruments which purports to operate, to create, declare, assign, limit or extinguish, whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, should be only by way of a registered document.

 

23. In Ex.A.1 there is a clear reference about the severance of status and the maintenance of the family separately. There was also a recital that a separate document would be registered in accordance "with the deed of partition" within one month. Therefore the document dated 25.3.1976 contemplates a further document to be executed between the parties by way of a registered deed. Therefore this clearly shows that Ex.A.1 is only a confirmation of the oral partition already made between the parties.

 

24. Section 17(2)(v) of the Registration Act reads thus:-

 

17. Documents of which registration is compulsory:-

 

(1)............

 

(2) Nothing in clauses (b) and (c) of Sub-section (1) applies to ----

 

(i) to (iv).....

 

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest;......"

 

25. Ex.A.1 clearly provides that a further document would be executed between the parties and it would be registered. Therefore the document would come within the meaning of Section 17(2)(v) of the Registration Act and as such there was no requirement of registration of Ex.A.1 for the purpose of its admissibility.

 

26. In NARASIMHASWAMI v. VENKATALINGAM (AIR 1927 Madras 636) a Full Bench of this Court considered the scope and ambit of Section 17 of the Registration Act and held that in deciding as to whether the document requires registration or not one has to take the document as a whole and construe it with reference to the terms and not as to what might have been the intention.

 

27. Since Ex.A.1 proceeded on the basis that there was an oral partition effected between the parties long back and it contemplated the execution of another registered document in accordance with the said deed Ex.A.1 is admissible in evidence, even though it was not properly stamped or registered.

 

28. The predecessor in interest of the defendants was a party to the document in Ex.A.1. It is not as if Muthukumarasamy was not allotted any share in the partition. He was given his share and it was also mentioned in Ex.A.1. Subsequently Muthukumarasamy sold the property allotted to him to third parties. The plaintiff has marked two such documents as Exs.A.6 and A.7. In both Exs.A.6 and A.7 Muthukumarasamy confirmed the fact that as per the partition deed executed on 25.3.1976 100 kuzhis of land on the southern side of the property in Survey No.31/5 was allotted to the plaintiff. The property in Survey No.31/5 is the property shown as item No.5 which originally stood in the name of Muthukumarasamy. Even if the document in Ex.A.1 was not registered, the subsequent confirmation in a registered document has to be taken as an acknowledgment of the fact that a partition has taken place in the family and even the property which stood in the name of his brother Muthukumarasamy was allotted to the share of the plaintiff.

 

THE LEGAL PRINCIPLES:-

 

29. In Kale v. Dy. Director of Consolidation, AIR 1976 SC 807 = (1976) 3 SCC 119, a family arrangement was challenged by the respondents in the civil appeal on the ground that the appellant had absolutely no title to the property so long as the other party to the settlement was in lawful possession, as the sole legal heirs of the original owner. The said argument was negatived by the Supreme Court by endorsing the views expressed by the Privy council. The relevant paragraph would read thus:-

 

"36. Furthermore the Privy Council in somewhat identical circum stances upheld the family settlement in Ramgouda Annagouda v. Bhausaheb (AIR 1927 PC 227). In that case there were three parties to the settlement of a dispute concerning the property of the deceased person. These were the widow of the deceased, the brother of the widow and the son-in-law of the widow. It was obvious, therefore, that in presence of the widow neither her brother nor her son-in-law could be regarded as the legal heirs of the deceased. Yet having regard to the near relationship which the brother and the son-in-law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents 4 and 5 at the highest, the position is that Lachman died leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement. In the instant case also it would appear that appellant Kale and Mst Har Pyari had no subsisting interest in the property so long as Mst Ram Pyari was alive. Ram Pyari in view of the amendment in law by U.P. Land Reforms (Amendment) Act 20 of 1954, continued to be an heir even after her marriage but Mst Har Pyari ceased to be the heir after her marriage which had taken place before the amendment. Nevertheless the three children of Lachman in order to bring complete harmony to the family and to put an end to all future disputes decided to divide the property each getting a share in the same. Appellant Kale got khatas Nos. 5 and 90 and Mst Har Pyaris share was placed along with Mst Ram Pyari in the other khatas. Thus the appellant and Har Pyari and Ram Pyari also enjoyed full benevolence under the family arrangement. We cannot think of a fairer arrangement than this by which not only the property was divided amongst the children of Lachman but even the spirit of the law, which wiped out the invidious distinction between the married and unmarried daughters by U.P. Act 20 of 1954, was followed. The facts of the present case, therefore, as we have already indicated, are on all fours with the facts in Ramgouda Annagouda case. The Privy Council further held in Ramgouda Annagouda case that Ramgouda being a party to benefit by the transaction was precluded from questioning any part of it. On a parity of reasoning, therefore, Respondents 4 and 5 who were parties to the family arrangement and having been benefited thereunder would be precluded from assailing the same. For these reasons, therefore, the contention of the learned counsel for the respondents on this point also must be overruled."

 

30. In Sahu Madho Das v. Mukand Ram, AIR1955 SC 481 = (1955) 2 SCR 22 , the Supreme Court indicated that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties. The following paragraph would explain the position.

 

"54........... 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 portions 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 receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary 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 acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had 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."

 

31. The learned Senior Counsel for the defendants contended that the plaintiff has no right in respect of item Nos.5 to 9 and as such the deed of settlement was not valid in respect of those items. This contention was taken on the basis that the predecessor-in-interest of the defendants was the title holder of those properties. The said contention is liable to be rejected at once in view of the pronouncement of the Supreme Court in Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119, which reads thus :

 

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) TO (4)...........

 

(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.

 

32. When the father of the defendants himself was a party to Ex.A.1 and as he had clearly admitted about the partition in Exs.A.6 and A.7 he was estopped from taking a contra contention subsequently. In fact no such contention against Ex.A.1 was taken by Muthukumarasamy at any point of time till his death. When a party to a document has not denied the execution or arrangement made mentioned in a document and he was estopped from taking up such a contention, it was not permissible for his legal representatives to take such a contention as they are only stepping into the shoes of their predecessor-in-interest.

 

33. The learned Senior Counsel by placing reliance on a Judgment in ASSOCIATED PUBLISHERS v. K. BASHYAM (AIR 1961 MADRAS 114) contended that estoppel is based on conduct an is a mixed question of fact and law and as such there should be specific pleading in the plaint to that effect. However in the facts of the present case I am of the view that there was no such requirement. Even if Ex.A.1 was not registered there would be an estoppel against the defendants on account of the admission made by their predecessor-in-interest in Exs.A.6 and A.7. It was not open to the defendants to challenge the validity of Ex.A.1 or the family arrangement as it was acted upon even during the life time of their predecessor-in-interest.

 

34. The object behind giving effect to a family settlement was indicated by the Supreme Court in Ram Charan Das v. Girja Nandini Devi,(1965) 3 SCR 841 = AIR 1966 Supreme Court, 323 thus:- "10........... Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagouda case1 of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu law, be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.

 

35. In S. Shanmugam Pillai v. K. Shanmugam Pillai, (1973) 2 SCC 312, an agreement in Ex.B.2 dated 29.9.1898 was executed between the widows of the original owner V.Rm. Shanmugam Pillai and vendor Shanmugam Pillai, his sister Irulammai and her husband Subramania Pillai and the document was styled as "agreement of peaceful settlement". The minor plaintiff Nos.1 and 2 in the subject suit before the Supreme Court was parties to the document in Ex.A.2 duly executed by their father, vendor Shanmugam Pillai. The document was acted upon by the parties resulting in a suit for partition. Subsequently a suit was filed by Sankaralingam Pillai, brother of the vendor Shanmugam Pillai, who was not a party to the document in Ex.B.2, praying for a decree of declaration that the will stated to have been executed by V.Rm.Shanmugham Pillai, whereby substantial bequests were made to Vendor Shanmugham Pillai, the step brother of V.Rm.Shanmugam Pillai as well as to his step sisters Irulammai and her husband Subramani Pillai, was a forged document. The suit was decreed. During the pendency of the appeal Sankaralingam Pillai died. Therefore the third plaintiff, who was his adopted son was brought on record as the legal representatives of Sankaralingam Pillai. He was represented by his guardian Meenakshi Ammal. That appeal was later dismissed. Even after obtaining a decree in his favour, the third plaintiff entered into an agreement with two widows of V.Rm.Shanmugam Pillai as per Ex.B.5 dated 27th October, 1938. The plaintiffs 1 and 2 on the basis of Ex.B.2 assigned the property in favour of third parties. The third plaintiff also assigned some of the items which he got as per Ex.B.5. When challenge was made to the documents in Exs.B.2 and B.5 at the instance of plaintiffs 1 to 3, who have enjoyed the benefits of those documents, the Supreme Court rejected their contention and observed thus:-

 

"12. Exs. B-2 and B-5 read together may also be considered as constituting a family arrangement. The plaintiffs and the widows of V.Rm. Shanmugam Pillai are near relations. There were several disputes between the parties. The parties must have thought it wise that instead of spending their money and energy in courts, to settle their disputes amicably. The father of Plaintiffs 1 and 2 and later on the plaintiffs were only presumptive reversioners, as also was the third plaintiff. None of them had any vested right in the suit properties till the death of the widows. Hence first the father of Plaintiffs 1 and 2 and later on the plaintiffs must have thought that a bird in hand is worth more than two in the bush. If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.

 

13. Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope. ...............

 

24. Now turning to the plea of family arrangement, as observed by this Court in  Sahu Madho Das v. Pandit Mukhand Ram7 the courts lean strongly in favours 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 dealings between the parties."

 

36.  In Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836 , the Supreme Court indicated that the conflict of legal claims in praesaneti or in future is generally a condition for validity of a family arrangement but it was not necessary in all cases. The relevant paragraph would read thus:-

 

"17. Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, courts will more readily give assent to such an arrangement than to avoid it."

 

37. The document in Ex.A.1 was executed on 25.3.1976. Exs.A.6 and A.7 were executed on 17.5.1976. The father of the defendants, who was a signatory in Ex.A.1 died on 2.1.1982. There was nothing indicated in the written statement or in the evidence of D.W.1 that Muthukumarasamy took steps to cancel the document in Ex.A.1 or treated the property otherwise than in accordance with the arrangement as found in Ex.A.1. In fact the admission made by Muthukumarasamy in Exs.A.6 and A.7 further corroborates the fact that there was severance of status earlier. Exs.A.6 and A.7 are two registered documents containing recital about the factum of partition of the property. However the details of partition was not given in Exs.A.6 andA.7 except with regard to the property in item No.5. Therefore Ex.A.1 can be relied on for the purpose of showing that there was a pre-existing family arrangement whereby the properties were partitioned between the parties.

 

38. The document in Ex.A.1 was not itself a consolidated document of partition. It records the factum of earlier partition between the parties. The said document also provided for making a further document as per the said deed and to register the same within one month. Merely because Ex.A.1 was captioned as partition deed it cannot be said that the partition by metes and bounds was intended to be created as per the said document.

 

39. While considering the true nature of a document, the entire document has to be seen. It is not sufficient if one paragraph is taken in isolation. A conjoint reading of the terms and conditions as found in Ex.A.1 would show that it was only a memorandum of past transaction requiring a further document to be executed so as to give a complete shape and to give legal validity. Therefore it cannot be said that the document was not admissible for want of registration under Section 17 of the Registration Act.

 

40. The learned trial Judge considered the factual matrix in the light of evidence. In fact the document in Ex.A.1 was marked with objections. Even while overruling the objection the learned trial Judge has indicated that it was only a memorandum which requires execution of a further document to register so as to give it a complete shape.

 

41. The finding recorded by the learned trial Judge was on the basis of materials and as such it does not call for interference. Accordingly the issues are answered against the defendants.

 

CONCLUSION:-

 

42. In the result, the judgment and decree dated 9.4.1992 in O.S.No.16 of 1990 is confirmed and the appeal is dismissed. Consequently the connected MP is closed. No costs.





Tags :- partition deedbinding nature




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