Kale & Ors Vs. Deputy Director of
Consolidation Ors [1976] INSC 7 (21 January 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 807 1976 SCR (2) 202 1976
SCC (3) 119
ACT:
Family arrangement-Its object and
purpose-Principle governing-if should be registered-Oral arrangement-If
permitted-If would operate as an estoppel Registration Act. s. 17(1)(b)-Family
arrangement if should be compulsorily registered.
HEADNOTE:
(A) The object of a family arrangement is to
protect the family from long drawn litigation or perpetual strife which mars
the unity and the solidarity of the family. 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 a milestone in the administration of social justice. Where by
consent of the parties a matter has been settled, the courts have learned in
favour of upholding such a family arrangement instead of disturbing it on
technical or trivial grounds. Where the courts find that the family arrangement
suffers from a legal lacuna or 1 formal defect, the rule of estoppel is applied
to shut out the plea of the person who being a party to the family arrangement,
seeks to unsettle a settled dispute and claims to revoke the family arrangement
under which he has himself enjoyed some material benefits. 1208 F-H; 209 A-B]
(B) (1) The family settled must be bona fide so as to resolve family disputes.
(ii) It must be voluntary and not induced by fraud, coercion or undue
influence; (iii) It may be even oral, in which case and registration is
necessary;
(iv) Registration is necessary only if the
terms are reduced to writing but where the memorandum has been prepared after
the family arrangement either for the purpose of record or for information of
court, the memorandum itself do not create or extinguish any rights in
immovable property and, therefore does not fall within the mischief of s. 17(2)
of the Registration Act and is not compulsorily registrable;
(v) The 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. But, even
where a party has no title and 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 by the courts; (vi) Where bona fide disputes are settled by a bona fide
family arrangement.
such family arrangement is final and binding
on the parties to settlement. [209 G-H; 21 0 A-E] Lala Khunni Lal & Ors v.
Runwar Gobind Krishna Narain and Anr. L.R 38 I.A. 8,. 102: Mt. Hiran Bibi and
others v.Mt. Sohan Bibi, A.I.R. 1914 P.C 44. Saltu Madho Das and others v.
Pandit -Mulkand Ram another 1955] 2 S.C.R. 22, 42-43. Ram Charan Das v.
Girijanandini Devi & Ors. [1965] 3 S.C.R 841, 850-851. Tek Bahadur Bhujil
v. Devi Singh and others, A.I.R. 1966 S.C. 292, 295: Maruri Pullaiah and Anr. v.
Maturi Narasimham and Ors. A.I.R 1366 SC 1836; Krishna Biharflal v. Gulabchand
and others. [1971] Supp. SCR 27 34 and S. Shanmugam Pillai and others v. K.
Shanmugam Pillai and others,, [1973] 2 S.C.C. 312, followed.
Ram Gopal v. Tulshi Ram and another, A.I.R.
1928 All.
641 649; Sitala Baksh Singh and others v.
lang Bahadur Singh and others, A.I.R. 1933 Oudh 347, 348-349. Mst. Kalawati v. Sri
Krishna Prasad and others, I.L.R. 19 Lucknow 57. 67.
Bakhtawar v. Sunder Lal and others. A.I.R.
1926 All. 173, 175 and Awadh Narain Singh and others v. Narain Mishra and
others, A.I.R. 1962 Patna 400, approved.
203 On the death of the father the family
consisted of two unmarried daughters A respondents 4 and 5) and appellant no.
1 (son of the married eldest daughter,
appellant No. 2).
After the marriage of respondents 4 and S the
property left behind by the father was mutated in the name of appellant no. I
who, under s. 36 of the U.P. Tenancy Act; 1939, was the sole heir. Eventually,
however, the parties arrived at a family settlement allotting khat as 5 and 90
to the appellant No. 1 and khat as 53 and 204 to respondents 4 and S. This
family arrangement was not registered. The revenue records were, however,
corrected. At the time of revision of records under the U.P. Consolidation of
Holdings Act,' 1953 appellant No. I found that he was shown as having ' one-
third share in all the properties. The Consolidation officer removed his name
from the records and substituted the names of the sisters namely appellant No.
2 and respondents 4 and
5. On appeal the Settlement officer restored
the names of appellant no. 1 in respect of khatas 5 and 90 and of respondents 4
and S in respect of khatas 53 and 204 which was in accordance with the family
arrangement. The Deputy Director of Consolidation reversed this finding. The
High Court dismissed the appellants' appeal.
On further appeal to this Court, it was
contended that (1) the High Court erred in rejecting the compromise on the
ground that it was not registered but that in view of the oral family
arrangement no question of registration of the compromise arose and (ii) even
if the compromise was unregistered it would operate clearly as estoppel against
respondents 4 and S.
Allowing the appeal, ^
HELD: The Deputy Director of Consolidation as
well as the High Court was wrong in taking the view that in the absence of
registration the family arrangement could not be sustained. The High Court also
erred in not giving effect to the doctrine of estoppel. 1217 Cl (1) (a) In the
instant case the facts clearly show that a compromise or family arrangement had
taken place orally before the petition was filed for mutation of the names of
the parties. (b) The word family cannot be construed in a narrow sense so as to
be confined only to persons who have a legal title to the property. When the
talks for compromise took place appellant No. I was a prospective heir and a
member of the family. Secondly respondents 4 and S relinquished their claims in
favour of the appellant in respect of Khatas 5 and 90. The appellant would,
therefore, be deemed to have antecedent title which was acknowledged by
respondents 4 and S. [217G] (c) There can be no doubt that the family
arrangement was bona fide. At no state of the case had the respondents raised
the issue of bona fides. [218D] (d) The allegation of fraud and undue influence
must first dearly be pleaded and then proved by clear and content evidence. In
the present case, there ,, was neither pleading nor proof of this fact by
respondents 4 and 5. Respondents Nos. 4 and 5 who were parties to the family
arrangement and, who, having been benefited thereunder, would be precluded from
assailing the same [219A] Ram Gouda Annagouda & others v. Bhausaheb and
others, J.R. 54 I.A. 396. referred to.
(2) Assuming that the family arrangement was
compulsorily registrable, 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.
In the present case respondents Nos. 4 and 5
would be estoppel from denying the existence of the family arrangement or from
questioning its validity. [223 F] Kanhai Lal v. Brij Lal and Anr., L.R. 45 I.A.
118, 124.
Dhiyan Singh and Anr. v. Jugal Kishore and
Anr.[1952] S.C.R.
478. Ram Charan Das v. Girja Nandini Devi
& Ors, [1965] 3 S.C.R. 841, 850-851. Krishna Biharilal v. Gulab chand and
others, [1971] Supp. S.C.R. 27, 34 and S. Shanmugam Pillai and others v. K.
Shanmugam Pillai and others, [1973] 2 S.C.R. 312. referred to.
204 Rachcha V. Mt. Mendha A.I.R. 1947 All.
177 and Chief Controlling Revenue Authority v. Smt. Satyawati Sood and others,
A.I.R. 1972 Delhi 171, held inapplicable.
Mr. Justice Sarkaria concurred with majority
view that the family arrangement was binding, but reserved his opinion with
regard to the alternative proposition, that assuming the family arrangement was
compulsorily regrettable under s.
17 (1) (b) of the registration Act, it could
be used to raise an estoppel against any of the parties to the suit.
[227 E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 37 of 1968.
Appeal by special leave from the judgment and
order dated 17-5-1966 of the Allahabad High Court in Special Appeal No. 640 of
1965.
R. K. Garg, S. C. Agrawala and V. J. Francis,
for the appellants.
B. D. Sharma, for respondents Nos. 4 and S
The Judgment of V. R. Krishna Iyer and S. Muataza Fazal Ali JJ. was delivered
by Fazal Ali, J. R. S. Sarkaria, J.
gave a separate opinion.
FAZAL ALI J. This is an appeal by special
leave against the judgment of the Allahabad High Court dated May 17, 1966 by
which the appeal against the decision of a Single Judge of the High Court
rejecting the writ petition of the appellants had been dismissed. An
application for granting a certificate for leave to appeal to this Court was
made by the appellant before the High Court which was also dismissed by order
of the High Court dated August , 1967.
The case had a rather chequered career and
the disputes between the parties were sometimes settled and sometimes reopened.
In order, however, to understand the point involved in the present appeal, it
may be necessary to enter into the domain of the contending claims of the
respective parties put forward before the Revenue Courts from time to time. To
begin with the admitted position is that one Lachman the last propitiator was
the tenant and the tenure holder of the property in dispute which consists of
19.73 acres of land contained in Khatas Nos. 5 & 90 and 19.4 acres of land
comprising Khatas Nos. 53 & 204. Lachman died in the year 1948 leaving
behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Musamat
Ram Pyari. Musamat Tikia was married during the life time of Lachman and the
appellant No. 1 Kale is the son of Musamat Tikia. Thus it would appear that
after the death of Lachman the family consisted of his two unmarried daughters
Har Pyari and Ram Pyari and his married daughter's son Kale. Under the U.P.
Tenancy Act, 1939 which applied to the
parties only unmarried daughters inherit the property. The first round of
dispute appears to have arisen soon after the death of Lachman in the year 1949
when Panchayat Adalat of the village was asked to decide the dispute between
Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the
property left by Lachman. Har Pyari and Ram Pyari appear to have been parties
to that dispute and the Panchayat Adalat after making local enquiries held that
Har Pyari having been married had lost her right in the estate and Ram 205
Pyari was also an heir so long as she was not married and after her marriage
the legal heir to the property of Lachman would be the appellant Kale. In the
year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made
applicable to the tenure holders also. This Act was further amended on October
10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under
the statute, "unmarried daughter" was substituted by ''daughter''
only.
According to the appellant in this Court as
also in the High Court Ram Pyari respondent No. S was married on February 25,
1955 and thereafter the appellant filed a petition before the Naib Tahsildar,
Hasanpur, for expunging the names of respondents 4 and 5 from the disputed
Khatas because both of the daughters having been married ceased to have any
interest in the property. lt was therefore prayed that the appellant was the
sole heir to the estate of Lachman under s. 3 of the U.P. Tenancy Act, 1939, he
alone should be mutated in respect of the`property of Lachman. By order dated
December S, 1955 the Naib Tahsildar, Hasaknpur, accepted the contention of the
appellant and expunged the names of respondents 4 & 5 from the Khatas in
dispute and substituted the name of the appellant Kale. Soon thereafter on
January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari
daughters of Lachman, filed an application before the Naib Tahsildar for
setting aside his order dated December 5, 1955 which had been passed behind
their back and without their knowledge. While this application of respondents 4
& 5 was pending adjudication the Revenue Court was informed that talk of
compromise was going on between the parties which ultimately culminated in a
compromise or a family arrangement under which the appellant Kale was allotted,
Khatas Nos. 5 90 whereas respondents 4 & 5 were allotted Khatas No. 53
& 204 as between them. A petition was filed on August 7, 1956 before the
Revenue Court informing it that compromise had been arrived at and in pursuance
thereof the name of the parties may be mutated in respect of the khatas which
had been allotted to them. This petition was signed by both the parties and
ultimately the Assistant Commissioner, 1 Class, passed an order dated March 31,
1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 &
90 and the names of respondents 4 & 5 in respect of Khatas Nos. 53 and 204.
Thereafter it is not disputed that the parties remained in possession of the
properties allotted to them and paid land revenue to the Government. Thus it
would appear that the dispute between the parties was finally settled and both
the parties accepted the same and that benefit thereunder.
This state of affairs continued until the
year 1964 when proceedings for revision of the records under s. 8 of the U.P.
Consolidation of holdings Act, 1953 were started in the village Hasanpur where
the properties were situated in the course of which respondents 4 & 5 were
entered in Form C.H.
5 as persons claiming co-tenure holders to
the extent of 2/3rd share with the appellant Kale who was entered in the said
form as having 1/3rd share in all the Khatas. In view of this sudden change of
the entries which were obviously contrary to the mutation made in pursuance of
the family arrangement entered into between the parties in 1956, the appellant
206 Kale filed his objections before the Assistant Consolidation officer for
changing the entries in respect of those Khatas.
As the Assistant Consolidation officer found
that the dispute was a complicated one he by his order dated May 7, 1964
referred the matter to the Consolidation officer. It might be mentioned here
that when the proceedings for revision of the records were started, while the
appellant filed his objections, respondents 4 & 5 seem to have kept quiet
and filed no objections at all. In fact under s. 9 (2) of the U. P.
Consolidation of Holdings Act, 1953, the respondents could have filed their
objections, if they were aggrieved by the entries made on the basis of the
compromise. Sub-section (2) of s. 9 of the U.P.
Consolidation of Holdings Act runs thus:
"Any person to whom a notice under
sub-section (1) has been sent, or any other person interested may, within 21
days of the receipt of notice, or of the publication under sub-section (1), as
the case may be, file, before the Assistant Consolidation officer, objections
in respect thereof disputing the correctness or nature of the entries in the re
cords or in the extract furnished therefrom, or in the Statement of Principles,
or the need for partition." This is a very important circumstance which
speaks volumes against the conduct of the respondents which will be referred to
in detail in a later part of our judgment and seems to have been completely
brushed aside by all the Courts.
The Consolidation officer to whom the dispute
was referred, by his order dated July 27, 1964, framed a number of issues, and
after trying the suit, removed the name of the appellant Kale from Khatas 5
& 90 and substituted the names of appellant No. 2 Musamat Tikia and those
of respondents 4 & 5. We might also mention here that for the first time
respondents 4 & 5 raised a dispute before the Consolidation officer denying
that the appellant Kale was the grandson of Lachman. The Consolidation officer
framed an issue on this question and after taking evidence clearly found that
the objection raised by respondents 4 & 5 was absolutely groundless and
that the appellant Kale was undoubtedly the grandson of Lachman. The
Consolidation officer pointed out that even before the Panchayat Adalat as also
in the mutation petition which was filed before the Naib Tahsildar respondents
4 & 5 never disputed that the appellant Kale was the grandson of Lachman
being the son of his daughter Musamat Tikia who is appellant No. 2.
Thereafter the appellant and the respondents
4 & 5 filed an appeal before the Settlement officer who by his order dated
November 28, 1964, restored the mutation made by the Naib Tahsildar on the
basis of the compromise, namely the appellant was mutated in respect of Khatas
Nos. 5 & 90 and respondents 4 & 5 in respect of Khatas Nos. 53 &
204.
Thereafter respondents 4 & 5 filed a
revision petition before the Deputy Director of Consolidation who by his order dated
January 22, 1965, reversed the order of the Settlement officer and expunged 207
the name of the appellant Kale from Khatas Nos. S & 90 and recorded the
name of respondent No. 5 Musamat Ram Pyari in respect of these Khatas on the
ground that she was the sole tenure holder in respect of those Khatas.
Thereafter the appellant Kale and his mother
Musama Tikia appellant No. 2 filed a writ petition in the Allahabad High Court
against the order of the Deputy Director of Consolidation. The writ petition
was heard in the first instance by a Single Judge who dismissed the petition
upholding the order of the Deputy Director of Consolidation The appellant then
filed a special appeal to the Division Bench of the Allahabad High Court which
also affirmed the judgment of the Single Judge and dismissed the appeal-hence
this appeal by special leave.
In support of the appeal Mr. Garg appearing
for the appellants submitted two points of law before us. In the first place he
argued that the grounds on which the Courts below have not given effect to the
family arrangement arrived at between the parties in 1956 culminating in the
mutation in 1957 are not legally sustainable. The High Court took an erroneous
view of the law in rejecting the compromise on the ground that it was not
registered. It was argued that an oral family arrangement had already taken
place earlier and application before the Naib Tahsildar was merely for the
information of the Court for the purpose of mutation of the names of the
parties in pursuance of the compromise and, therefore, no question of
registration of the compromise in this case arose. Secondly it was contended
that even if the compromise was unregistered it would undoubtedly operate as a
clear estoppel against the respondents 4 & 5 who having taken benefit
thereunder and having remained in possession of the lands for E more than seven
years cannot be allowed to revoke the compromise.
Mr. Sharma learned counsel appearing for the
respondents raised the following contentions before us:
(1) that the appellants never pleaded any
oral family arrangement;
(2) that the family arrangement relied upon
by the appellants was not bona fide and was fraudulent as the on sent of
respondents 4 & 5 was obtained by fraud or` undue influence;
(3) that the appellants themselves gave a
complete go bye to the family arrangement in the case which they made out
before the Revenue Courts and have merely taken advantage of a stray
observation made by the Deputy Director of Consolidation;
(4) that the petition filed before the Naib
Tahsildar embodied and as such the terms and conditions of the compromise was
compulsorily registrable under the Registration Act, and being unregistered it
was inadmissible in evidence;
(5) that at any rate the family arrangement
was not proved by the appellants as a fact;
208 (6) that the doctrine of estoppel would
not apply because the family arrangement being compulsorily registrable there
can be no estoppel against the statute; and (7) that the findings of the
Revenue Courts being essentially findings of fact, this Court would not
interfere, unless there was a sufficient error of law apparent on the face of
the record.
Before dealing with the respective
contentions put forward by the parties, we would like to discuss in general the
effect and value of family arrangements entered into between the parties with a
view to resolving disputes once for all. By virtue of a family settlement or
arrangement members of a family descending from a common ancestor or a near
relation seek to sink their differences and disputes, settle and resolve their
conflicting claims or disputed titles once for all in order to buy peace of
mind and bring about complete harmony and goodwill in the family. The family
arrangements are governed by a special equity peculiar to them and would be
enforced if honestly made. In this connection, Kerr in his valuable treatise
"Kerr on Fraud" at p. 364 makes the following pertinent observations
regarding the nature of the family arrangement which may be extracted thus;
"The principles which apply to the case
of ordinary compromise between strangers, do not equally apply to the case of
compromises in the nature of family arrangements. Family arrangements are
governed by a special equity peculiar to themselves, and will be enforced if
honesty made, although they have not been meant as a compromise, but have
proceeded from an error of all parties, originating in mistake or ignorance of
fact as to that their rights actually are, or of the points On which their
rights actually depend." 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. Today 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 administrating 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 forever
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 209 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:
"A family arrangement is an agreement
between members of the same family, intended to be generally and reasonably for
the benefit of the family either by compromising doubtful or disputed rights or
by preserving the family property or the peace and security of the family by
avoiding litigation or by saving-its honour.
The agreement may be implied from a long
course.
Of dealing, but it is more usual to embody or
to effectuate the agreement in a deed to which the term "family
arrangement" is applied.
Family arrangements are governed by
principles which are not applicable to dealings between strangers.
The court, when deciding the rights of
parties under family arrangements or claims to upset such arrangements,
considers what in the broadest view of the matter is most for the interest of
families, and has regard to considerations which in dealing with transactions
between persons not members of the same family, would not be taken into
account. Matters which would be fatal to the validity of similar transactions
between strangers are not objections- to the binding effect of family
arrangements".
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;
(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 210 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 pre pared after the family arrangement had
already been made either for the purpose of the record or for in formation 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 s. 17(2) of the Registration Act and is, therefore,
not compulsorily registrable;
(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 'It 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 9 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.
The principles indicated above have been
clearly enunciated and adroitly adumbrated in a long course of decisions of
this Court as also those of the Privy Council and other High Courts, which we
shall discuss presently.
In Lala Khunni Lal & Ors. v. Kunwar
Gobind Krishna Narain and Anr.(1) the statement of law regarding the essentials
of a valid settlement was fully approved of by their Lordships of the Privy
Council. In this connection the High Court made the following observations ,
which were adopted by the Privy Council:
The learned judges say as follows:
"The true character of the transaction
appears to us to have been a settlement between the several members of the
family of their disputes, each one relinquishing all claim in respect of all
property in dispute other than that falling to his share, and recognizing the
right of the others as they had previously asserted it to the portion allotted
to them respectively. It was in this light, rather than as conferring - a new
distinct title on each other, that the parties themselves seem to have regarded
the arrangement, and we think that (1) L. R. 38 T. A. 87. 102.
211 it is the duty of the Courts to uphold
and give full effect to such an arrangement." Their Lordships have no
hesitation in adopting that view." This decision was fully endorsed by a
later decision of the Privy Council in Mt. Hiran Bibi and others v. Mt. Sohan
Bipi(1).
In Sahu Madho Das and others v. Pandit Mukand
Ram and another(2) this Court appears to have amplified the doctrine of
validity of the family arrangement to the farthest possible extent, where Bose,
J., speaking for the Court, observed as follows:
"It is well settled that 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,
and 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." In Ram Charan. DAS v. Girjanandini Devi
& Ors. (3), this Court observed as follows:
"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 content is not to be under stood in a narrow
sense of being a group of persons who are recognised in law as having a right
of succession or (1) A.I.R. 1914 P.C.44. (2) [1955] 2 S.C.R. 22, 42-43.
(3) [1965] 3 S.C.R. 841, 850-851.
212 having a claim to a share in the property
in 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 been
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." In Tek Bahadur Bhujil v. Debi Singh Bhujil and others(1) it
was pointed out by this Court that a family arrangement could be arrived 4 at
even orally and registration would be required only if it was reduced into
writing. It was also held that a document which was no more than a memorandum
of what had been agreed , to did not require registration. This Court had
observed thus:
"Family arrangement as such can be
arrived at orally. Its terms may be recorded in writing as 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 f in what properties the parties possess." Similarly in
Maturi Pullaiah and Anr. v. Maturi Narasimham and ors.(2) it was held that even
if there was no conflict of legal claims but the settlement was a bona fide one
it could be sustained by the Court. Similarly it has also held that even the
disputes based upon ignorance of the parties as to their rights were sufficient
to sustain the family arrangement. In this connection this Court observed as follows:
- "It will be seen from the said passage that a family arrangement
resolves family disputes, and that even disputes based upon ignorance of
parties as to their rights may afford a sufficient ground to sustain it.
* * * * * 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, (1) A.I.R. 1966 S.C.
292, 295. (2) A.I.R. 1966 S.C.
1836.
213 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." In Krishna Biharilal v.
Gulabchand and others(1) it was pointed out that the word 'family' had a very
wide connotation and could not be confined only to a group of persons who were
recognised by law as having a right of succession or claiming to have a share.
The Court then observed:
"To consider a settlement as a family
arrangement, it is not necessary that the parties to the compromise should all
, belong to one family. As observed by this Court in Ram Charan Das v.
Girjanandini Devi and ors.[1965] 3 SCR 841 at pp. 850 & 851-the word
"family" in the context of a family arrangement 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. If the dispute which is settled is one between near
relations then the settlement of such a dispute can be considered as a family
arrangement see Ramcharan Das's case.
The courts lean strongly in favour of family
arrangements to bring about harmony in a family and do Justice to its various
members and avoid in anticipation future disputes which might ruin them
all." In a recent decision of this Court in S. Shanmugam Pillai and others
v. K. Shanmugam Pillai & others(2) the entire case law was discussed and
the Court observed as follows:
"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.
* * * * Now turning to the plea of family
arrangement, as observed by this Court in Sahu Madho Das and others v Pandit
Mukand Ram and Another [1955] 2 SCR 22 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 dealings between the parties.
In Maturi Pullaiah and Another v. Maturi
Narasimham and Others- AIR 1966 SC 1836 this Court held that although conflict
of legal claims in praesenti or in future is (1) [1971] Supp. SCR 27, 34. (2)
[1973] 2 SCC 312.
214 generally condition for the validity of
family arrangements, it is not necessarily so. Even bona fide dispute present
or possible, which may not involve legal claims would be sufficient. 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 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." Thus it would appear from a review of the decisions
analysed above that the Courts have taken a very liberal and broad view of the
validity of the family settlement and have always tried to uphold it and
maintain it. The central idea in the approach made by the Courts is that if by
consent of parties a matter has been settled, it should not be allowed to be
re-opened by the parties to the agreement on frivolous or untenable grounds.
A full bench of the Allahabad High Court in
Ramgopal v. Tulshi Ram and another(1) has also taken the view that a family
arrangement could be oral and if it is followed by a petition in Court
containing a reference to the arrangement and if the purpose was merely to
inform the Court regarding the arrangement, no registration was necessary. In
this connection the full bench adumbrated the following propositions in
answering the reference:
" We would, therefore return the reference
with a statement of the following general propositions:
With reference to the first question:
(1) A family arrangement can be made orally.
(2) If made orally, there being no document,
no question of registration arises.
With reference to the second question:
(3)If though it could have been made orally,
it was in fact reduced to the form of a "document", registration
(when the value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced
to the form of a document" is a question of fact in each case to be
determined upon a consideration of the nature and phraseology of the writing
and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to
the form of a document", registration was not necessary (even though the
value is Rs. 100 or upwards); and, while the writing cannot be used as a piece
of evidence for what it may be worth, e.g. as corroborative of other evidence
or as an admission of the transaction or as showing or explaining conduct.
(1) AIR 1928 All. 641, 649.
215 (6) If the terms were "reduced to
the form of a document" and, though the value was Rs. 100 or upwards, it
was not registered, the absence of registration makes the document inadmissible
in evidence and is fatal to proof of the arrangement embodied in the
document." Similarly in Sitala Baksh Singh and others v. Jang Bahadur
Singh and other (1) it was held that where a Revenue Court merely gave effect
to the compromise, the order of the Revenue Court did not require registration.
In this connection the following observations ' were made:
"In view of this statement in para 5 of
the plaint it is hardly open to the plaintiffs now to urge that Ex. 1, the com
promise, required registration when they themselves admit that it was embodied
in an order of the Revenue Court and that it was given effect to by the Revenue
Court ordering mutation in accordance with the terms of the compromise. * * * *
We hold that as the Revenue Court by its proceeding gave effect to this compromise,
the proceedings and orders of the Revenue Court did not require
registration." Similarly in a later decision of the same Court in Mst.
Kalawati v. Sri Krlshna Prasad and others (2)
it was observed as follows:
"Applying this meaning to the facts of
the present case, it seems to us that the order of the mutation court merely
stated the fact of the compromise having been arrived at between the parties
and did not amount to a declaration of will. The order itself did not cause a
change of legal relation to the property and therefore it did not declare any
right in the property." The same view was taken in Bakhtawar v. Sunder Lal
and others(3), where Lindsay, J., speaking for the Division Bench observed as
follows:
"It is reasonable to assume that there
was a bona fide dispute between the parties which was eventually composed each
party recognizing an antecedent title in the other. I this view of the
circumstances I am of opinion that there was no necessity to have this petition
registered. It does not in my opinion purpose to create, assign, limit,
extinguish or declare within the meaning of these expressions as used in S.
17(1)(b) of the Registration Act. It is merely a recital of fact by which the
Court is informed that the parties have come to an arrangement." Similarly
the Patna High Court in Awadh Narain Singh and others v. Narain Mishra and
others(4) pointed out that a compromise petition not embodying any terms of
agreement but merely conveying in formation to the Court that family arrangement
had already been (1) A.I.R 1933 Oudh 347, 348-349. (2) I.L.R. 19 Lucknow 57,
67.
(3) A.I.R. 1926 All. 173. 175. (4) AIR 1962
Patna 400.
15-390SCI/76 216 arrived at between the
parties did not require registration and can be looked into for ascertaining
the terms of family arrangement. This is what actually seems to have happened
in the present case when the mutation petition was made before the Assistant
Commissioner.
This Court has also clearly laid down that a
family arrangement being binding on the parties to the arrangement clearly
operates as an estoppel so as to preclude any of the parties who have taken
advantage under the agreement from revoking or challenging the same. We shall
deal with this point a little later when we consider the arguments of the
respondents on the question of the estoppel. In the light of the decisions
indicated above, we shall now try to apply the principles laid down by this
Court and the other Courts to the facts of the present case.
It would be seen that when the name of appellant
No. 1 Kale was mutated in respect of the Khatas by the Naib Tehsildar by his
order dated December 5, 1955 which is mentioned at p. 4 of the Paper Book
respondents 4 & 5 filed an application for setting aside that order on the
ground that they had no knowledge of the proceedings. Subsequently a compromise
was entered into between the parties a reference to which was made in the
compromise petition filed before the Revenue Court on August 7, 1956. A perusal
of this compromise petition which appears at pp. 15 to 18 of the Paper Book
would clearly show two things-(1) that the petition clearly and explicitly
mentioned that a compromise had already been made earlier, and (2) that after
the allotment of the Khatas to the respective parties the parties shall be
permanent owners thereof. The opening words of the petition may be extracted
thus:
"It is submitted that in the above suit
a compromise has been made mutually between the parties." It would appear
from the order of the Assistant Commissioner, 1st Class, being Annexure 4 in
Writ Petition before the High Court, appearing at p. 19 of the Paper Book that
the parties sought adjournment from the Court on the ground that a compromise
was being made. In this connection the Assistant Commissioner, 1st Class, observed
as follows:
"On 11th January 1956 Mst. Har Piari and
Ram Piari gave an application for restoration in the court of Naib Tahsildar on
the ground that they were not informed of the case and they were aggrieved of
his order passed on 5th December 1955. On this application he summoned the
parties and an objection was filed against the restoration application. The
parties sought adjournment on the ground that a compromise was being made.
The parties filed compromise before the Naib
Tehsildar according to which two lists were drawn, one of these is to be
entered in the name of. Kale and the other in the name of Har Piari and Ram
Piari." This shows that even before the petition was filed before the
Assistant commissioner informing him that a compromise was being made, The 217
parties had a clear compromise or a family arrangement in contemplation for
which purpose an adjournment was taken.
These facts coupled together unmistakably
show that the compromise or family arrangement must have taken place orally
before the petition was filed before the Assistant Commissioner for mutation of
the names of the parties in pursuance of the compromise. The facts of the
present case are '` therefore clearly covered by the authorities of this Court
and the other , . High Courts which laid down that a document which is in the
nature of a memorandum of an earlier family arrangement and which is filed
before the Court for its information for mutation of names is not compulsorily
registrable and there for can be used in evidence of the family arrangement and
is final and binding on the parties. The Deputy Director of Consolidation
respondent No. 1 as also the High Court were, therefore, wrong in taking the
view that in absence of registration the family arrangement could not be
sustained. We might mention here that in taking this view, the High Court of
Allahabad completely over looked its own previous decisions on this point which
were definitely binding on it. This, therefore, disposes of the first
contention of the learned counsel for the respondents that as the family
arrangement having been reduced into the form of a document which was presented
before the Assistant Commissioner was unregistered it is not admissible and
should be excluded from consideration.
It was then contended by the respondents that
the family arrangement was not bona fide for two reasons:
(1) that it sought to give property to the
appellant No. 1 Kale who was not a legal heir to the estate of Lachman, because
in view of the U.P. Land Reforms (Amendment) Act 20 of 1954 Mst. Ram Piari even
after being married could ? retain the property, and so long as she was there
the appellant had no right; and - (2) that the family arrangement was brought
about by fraud or undue influence.
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 word 'family' cannot be
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 grandson 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 218 Act, 1956,
was not passed and respondents 4 & 5 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 p 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 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.
There is yet one more intrinsic circumstance
which shows that the compromise was an absolutely bona fide transaction. It
would appear that at the time of the compromise respondent 5 Ram Pyari was
faced with a situation when her marriage in 1955 was not so far proved. If she
was absolutely certain that her marriage had taken place in 1955 she would not
have agreed to the terms at all. On the other hand if she thought that she
might not be able to prove that her marriage took place in 1955 and if it was
shown that she had married before 1955 then she would be completely
disinherited and would get nothing at all with the result that the appellant
Kale would get the entire property. on the other hand the appellant must have
similarly thought that a bird in hand is worth two in the bush. So long as Ram
Pyari was alive he would not be able to enjoy the property and would have to
wait till her death. It was, therefore, better to take half of the property
immediately as a permanent tenure holder and give the half to the daughters of
Lachman, namely, Har Pyari and Ram Pyari. Thus under the terms of the compromise
both the parties got substantial .
benefits and it was on the whole a very fair
and equitable bargain. In these circumstances, therefore, the parties struck a
just balance and fair and beneficial settlement which put an end to their
disputes.
Coming to the second plank of attack against
the family settlement that it was brought about by duress or undue influence or
fraud, there is not an iota of evidence or a whisper of an allegation by
respondents 4 & 5 either in the Revenue Courts or in the High Court. Even
before respondent No. 1, where respondents 4 & 5 were the petitioners l,
219 they never questioned the compromise on the ground that it was fraudulent
on a point of fact. It is well settled that allegations of fraud or undue
influence must first clearly be pleaded and then proved by clear and cogent
evidence.
There was neither pleading no proof of this
fact by respondent 4 & 5. Moreover, it may be mentioned that even in their
objections before the Assistant Commissioner for setting aside the previous
mutation made in favour of the appellant Kale the only ground taken by the
respondents 4 & 5 was that the order was passed without their knowledge.
Lastly the petition filed before the
Assistant Commissioner for mutating the lands in pursuance of the compromise
was signed by both the parties who were major and who knew the consequences
thereof. In these circumstances, therefore, the argument of the learned counsel
for the respondents that the compromise was fraudulent appears to be a pure
after-thought and is not at all justified by any evidence. This contention must
therefore be overruled.
It was also suggested by Mr. Sharma that
before the Revenue Courts the appellant Kale tried to show by producing a false
Kutumb Register that respondent No. 5 Ram Pyari was married before 1955 so that
being a married daughter she may be deprived of her inheritance and the Revenue
Courts found that this register was not proved to be genuine. This, however,
does not amount to a plea of fraud but is a matter of evidence. On the other
hand even the respondents 4 & 5 had taken the stand before the Revenue
Courts when they filed their joint written statement in 1965 that the appellant
was not the grandson of Lachman a fact which they admitted clearly before the
Panchayat Adalt as also before the Assistant Commissioner when they filed the
mutation petition. The Revenue Courts clearly held that this plea was totally
unfounded and was completely disproved. thus even assuming the argument of Mr.
Sharma to be correct, both parties being in pari delicto none of them could be
allowed to take advantage of their wrong. In fact Mr. Garg counsel for the
appellants was fair enough to give up this plea and clearly conceded before the
High Court as also in this Court that Musamat Ram Pyari was married in 1955 as
found by the Revenue Courts.
Another contention that was advanced before
us by counsel for the respondents was that an oral family arrangement was never
pleaded before the Revenue Courts and that the appellants relied mainly on the
mutation petition as embodying the terms and conditions of the compromise. In
our opinion this contention, apart from being untenable, is not factually
correct. The disputes between the appellant Kale and respondents 4 & 5
arose only after the Naib Tehsildar had, on the application of the appellant,
mutated his name in respect of the Khata Numbers in dispute. An application was
filed by respondents 4 & 5 for setting aside that order. Thereafter both
the parties, namely, the appellant and respondents 4 & 5 obtained
adjournment from the Court on the ground that they were going to compromise the
dispute. Subsequently the mutation petition was filed which was signed by both
the parties. In the Revenue Courts therefore it was the mutation petition alone
which formed the pleadings of the parties and therefore it was obvious that the
family arrangement was pleaded by 220 the appellant at the first possible
opportunity The family arrangement was again relied upon before the
Consolidation officer in Annexure-5 to the writ petition the relevant portion
which appears at p. 25 of the Paper Book and runs thus:
The parties contested the suit in the
panchayat.
They contested it in tahsil also. The
plaintiff produced a copy thereof. He produced a copy of a compromise in which
the defendant gave half of the land to Kale, treating him as dheota of Lachman,
although no party now remembers about that compromise." In the final
Revenue Court i.e., before the Director of Consideration as also before the
High Court the compromise was very much relied upon by the appellant and a
finding against the appellant was given both by respondent No. 1 and by the
High Court as a result of which this appeal has been filed before this Court.
It was suggested by the respondents that Respondent No. 1 had merely made a
stray observation in his order. This does not appear to be correct, because
respondent No. 1 has proceeded on the footing that a compromise was there but
it could not be given legal effect because it contravened some provisions of the
law. In this connection the order of respondent No. 1 reads thus:
"Even the orders passed in the mutation
proceedings on the basis of compromise could not maintain as since the mutation
proceedings were of summary nature and the com promise of the parties, even if
accepted, was against the pro visions of law, as either Smt. Ram Pyari could
succeed or Kale alone could be deemed to be the successor of Lachman, the last
male tenant. There was no question of both the parties sharing the land in
between them on the basis of a compromise made against the provisions of
law." Respondent No. 1 also indicated in his order that the compromise had
taken place before the Naib Tehsildar as alleged by the appellant. Lastly both
the Single Judge and the Division Bench also have proceeded on the basis that
there was in fact a compromise between the parties but have refused to give
effect. to the compromise because the same was not registered. In these
circumstances, therefore, the contention of the respondents 4 and 5 on this
score must be overruled.
It was then argued that the appellants have
adduced no evidence to prove that there was actually a family arrangement
between the parties. We are, however, unable to agree with thus contention
There are four important circumstances from which the family arrangement can be
easily inferred. These are;
(1) that the parties took adjournment from
the Court intimating to it that a compromise was under contemplation;
(2) that a petition for mutation was filed
before the Court of Assistant Commissioner clearly alleging that a com promise
or a family arrangement had already taken place and that mutation should be
made accordingly;
221 (3) that in pursuance of the compromise
both the parties A took benefit under the same and continued to remain in
possession of the properties allotted to them for full seven years and did not
raise any objection at any stage before any authority during this period
regarding the validity of the compromise; and (4) that even though the U.P.
Consolidation of Holdings Act, 1953 contained an express provision for filing
of an objection under s. 9 (2) when the proceedings for correction of the
entries were taken respondents 4 & 5 filed no objection whatsoever and
filed their additional written statement at a much later stage.
Thus from the actings and dealings of the
parties in the course of several years a family arrangement can clearly be
inferred in this case.
Finally the respondents never took any
objection before any of the Courts that no family arrangement had as a matter
of fact taken place between the parties. The only objection centered round the
admissibility of the document said to have embodied the terms of the
compromise. This contention, therefore, cannot be accepted.
It was then submitted that even the appellant
had given a go bye to the compromise and seems to have forgotten all about it.
This is also factually incorrect. As indicated earlier right from the Court of
the Consolidation officer up to the High Court the appellant has always been
relying mainly on the compromise entered into between the parties.
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 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 done. 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, (supra) relying on certain observations made by Bose, J., in
Sahu Madho Das's case, (supra) 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:
It is well settled that a compromise or
family arrangement is based on the assumption that there is an antecedent 222
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.
"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 r 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.
Furthermore the Privy Council in somewhat
identical circumstances P upheld the family settlement in Ramgouda Annagouda
& others v. Bhausaheb and others(1). 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 & 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 the appellant Kale and Mst. Har Piari had no subsisting
interest in the property so long as Mst. Ram Piari was alive. Ram Piari in view
of the amendment in law by the U.P. Land Reforms (Amendment) Act, 20 of 1954,
continued to be an heir even after her marriage but Mst. Har Piari 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. The appellant Kale got Khatas Nos. 5
& 90 and Mst. Har Pari's share was placed along with Mst. Ram Piari in the
other Khatas. This the appellant and Har Piari & Ram Piari 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 the U.P.
Act 20 of 1954, was followed. The facts of the present case, therefore, as we
have already indicated, are (1) L.R. 54 I.A. 396.
223 on all fours with the facts in Ramgouda
Annagouda's case (supra). The Privy Council further held in Ramgouda
Annagouda's 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,
the respondents 4 & 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 over- ruled.
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 (1) and Mst. Bibi Aziman
and another v. Mst. Saleha and others (2) 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.
Rebutting the arguments of the learned
counsel for the appellant, Mr. Sharma for 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 and Anr.(3) 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 (1) AIR 1961 Pat. 79.
(2) AIR 1963 Pat. 62.
(3) L.R. 45 I.A. 118, 124.
224 has hitherto enjoyed. In their Lordships'
opinion he is bound by it, and cannot now claim as a reversioner.
This Court in Dhiyan Singh and Anr. v. Jugal
Kishore and Anr. (1) observed as follows:
"We do not think the fact that there was
a voluntary com promise whereas here there was the imposed decision of an
arbitrator makes any difference because we are not proceeding on the footing of
the award but on the actions of the parties in accepting it when they need not
have done so if the present contentions. are correct.
Even if the arbitrator was wholly wrong and
even if they had no power to decide as he did, it was open to both sides to
accept the decision and by their acceptance recognise the existence of facts
which would in law give the other an absolute estate in the properties they
agreed to divide among themselves and did divide. That, in our opinion is a
representation of an existing fact or set of facts. Each would consequently be
estopped as against the other and Brijlal in particular would have been
estopped from denying the existence of facts which would give Mst.
Mohan Dei an absolute interest in the suit
property." In view of the principle enunciated in the aforesaid case it is
obvious that respondents 4 & 5 would be estopped from denying the existence
of the family arrangement or from questioning its validity.
In Ram Charan Das's case (supra) while
dwelling on the point of the family arrangement this Court observed as follows:
"It seems to us abundantly clear that this
document was in substance a familiar arrangement and, therefore, was binding on
all the parties to it.
Moreover it was acted upon by them. x x x x
In our opinion the document on its face appears to effect a compromise of the
conflicting claims of Gopinath on the one hand and the pre sent plaintiff Ram
Charan Das and his brothers on the other to the estate of Kanhaiyalal." At
p. 851 this Court pointed out that as the settlement consisted of recognition
of the right asserted by each other none of the parties could be permitted to
impeach it thereafter.
To the same effect is the decision of this
Court in Krishna Bihari lal's case (supra), where the doctrine of estoppel was
discussed, and while referring to the previous cases of this Court, it was
observed as follows:
"In Dhyan Singh's case -[1952] SCR
478-this Court ruled that even if an award made is invalid, the persons who
were parties to that award are estopped from challenging the (1) [1952] S.C.R.
478.
225 validity of the award or from going behind
the award in a subsequent litigation. In T. V. R. Subbu Chetty's Family
Charities v. M. Raghava Mudaliar and Ors.-[1961] 3 SCR 624-this Court ruled
that if a person having full knowledge of his rights as a possible reversioner
enters into a transaction which settles his claim as well as the claim of the
opponent at the relevant time, he cannot be permitted to go back on that
arrangement when reversion actually opens. At the time of 1 the compromise
Lakshmichand and Ganeshilal were the near est presumptive reversioners. They
must be deemed to have J known their rights under law. Under the compromise
they purported to give a portion of the suit properties absolutely to Pattobai,
evidently in consideration of her giving up her claim in respect of the other properties.
They cannot be now permitted to resile from the compromise and claim a right
inconsistent with the one embodied in the compromise." Finally in a recent
decision of this Court in S. Shanmugam Pillai case (supra) after an exhaustive
consideration of the authorities on the subject, it was observed as follows:
"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.
As observed by this Court in T. V. R. Subbu
Chetty's Family Charities' case (supra), that if a person having full knowledge
of his right as a possible reversioner enters into a transaction which settles
his claim as well as the claim of the opponents at the relevant time, he cannot
be permitted to go back on that agreement when reversion actually falls
open." In these circumstances there can be no doubt that even if the
family settlement was not registered it would operate as a complete estoppel
against respondents 4 & 5. Respondent` No. 1 as also the High Court,
therefore, committed substantial error of law in not giving effect to the
doctrine of estoppel as spelt out by this Court in so many cases. The learned
counsel for the respondents placed reliance- upon a number of authorities in
Rachcha v. Mt. Mendha,(1) Chief Controlling 6 Revenue Authority v. Smt. Satyawati
Sood and others(2) and some other authorities, which, in our opinion have no
bearing on the issues to be decided in this case and it is therefore not
necessary for us to refer to the same Finally it was contended by the
respondents that this Court should not interfere because there was no error of
law in the judgment of the High Court or that of Respondent No.
1. This argument is only stat- ed to be
rejected.
(1) AIR 1947 All. 177. (2) AIR 1972 Delhi
171.
226 In view of our finding that the family
settlement did not contravene any provision of the law but was a legally valid
and binding settlement in accordance with the law, the view of Respondent No. 1
that it was against the provisions of the law was clearly wrong on a point of
law and could not be sustained. Similarly the view of the High Court that the
compromise required registration was also wrong in view of the clear fact that
the mutation petition filed before the Assistant Commissioner did not embody
the terms of the family arrangement but was merely in the nature of a
memorandum meant for the information of the Court. The High Court further in
law in not giving effect to the doctrine of estoppel which is always applied whenever
any party to the valid family settlement tries to assail i The High Court
further erred in not considering the fact that even if the family arrangement
was not registered it could be used for a collateral purpose, namely, for the
purpose of showing the nature and character o possession of the parties in
pursuance of the family settlement and a o for the purpose of applying the rule
of estoppel which followed from the conduct of the parties who having taken
benefit under the settlement keep their mouths shut for full seven years and
later try to resile from the settlement. In Shyam Sunder and others v. Siya Ram
and another (1) it was clearly held by the Allahabad High Court that the
compromise could have been taken into consideration as a piece of evidence even
if it was not registered or for that matter as an evidence of an antecedent
title. The High Court observed as follows:
"The decision in Ram Gopal v. Tulshi
Ram,-AIR 1928 All. 641 (FB)-is clear that such a recital can be relied upon as
a piece of evidence.
It is clear, therefore, that the compromise
can be taken into consideration as a piece of evidence. x x x To sum up,
therefore, we are of the view that the compromise could have been relied upon
as an admission of antecedent title." On a careful consideration of the
facts and the circumstances and the law discussed above, we are clearly of the
opinion that-the orders of the High Court as also that of Respondent No. 1
suffer from a substantial error of law resulting in serious injustice to the appellant
by re- opening a dispute which had been settled almost seven to eight years
before the proceedings for re-opening the same were started. In not interfering
to correct the clear error of law committed by Respondent No. 1, the High Court
failed to exercise jurisdiction vested in it by law, and, therefore, the order
of the High Court itself was legally erroneous and cannot be sustained. The
contentions raised by the appellant are well founded and must prevail, while
the contentions advanced by the respondent fail.
In these circumstances, therefore, the appeal
is allowed, the judgment of the High Court is set aside and by a writ of
certiorari the order of Respondent No. 1 dated January 22, 1965 is hereby
quashed. The (1) AIR 1973 All. 382, 389.
227 order of the Settlement officer dated
November 28, 1964 which actually gave effect to the compromise is hereby
restored and the Revenue authorities are directed to attest the mutation in the
names of the appellant and respondents 4 & 5 in accordance with the family
arrangement entered into between the parties referred to in this case. In the
peculiar circumstances of the case there will be no order as to costs.
SARKARIA J. I am at one with my learned
Brother, that this appeal should be allowed with no order as to costs and that
the order dated January 22, 1965 of Respondent 1 quashed, the order dated
November 28, 1964 of the Settlement officer restored, and the Revenue
authorities directed to attest the mutation in accordance with the antecedent
family arrangement which had been orally arrived at between the parties and
acted upon for several years. I further agree that the family settlement
arrived at by the parties was oral, and the petition filed by them on August 7,
1956 before the Assistant Commissioner was merely an information of an already
completed oral transaction. In other words, the petition was only an intimation
to the Revenue court or authority that the matters in dispute between the
parties had been settled amicably between the members of the family and no
longer required determination and that the mutation be effected in accordance
with that antecedent family settlement. Since the petition did not itself
create or declare any rights in immovable property of the value of Rs. 100 or
upwards, it was not hit by s. 17(1)(b) of the Registration Act, and as such was
not compulsorily registrable. The rest of the reasoning in the judgment of my
learned Brother has also my concurrence except that I will reserve my opinion
with regard to the alternative proposition, whether this petition-assuming it
was compulsorily registrable under s. 17(1) (b) of the Registration Act-could
be used to raise an estoppel against any of the parties hereto. Decision of
this point, in my opinion, is unnecessary for the disposal of this case.
P.B.R. Appeal allowed.
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