advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, September 13, 2016

Family settlement is final one – it operates as estoppel despite of having some latches or formal defects. 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. (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]

Apex court

PETITIONER:
KALE & OTHERS

Vs.

RESPONDENT:
DEPUTY DIRECTOR OF CONSOLIDATION ORS

DATE OF JUDGMENT21/01/1976

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
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 tho
same in the hands  of a  few, is  a  milestone in  the  ad
ministration 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 khatas 5 and 90 to the appellant
No. 1  and khatas  53 and  204 to  respondents 4 and S. This
family arrangement  was not  registered. The revenue records
were, how  ever, 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   tho  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]



JUDGMENT:
     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  themselves 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 cr  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
for ever  and the family instead of fighting claims inter se
and wasting  time, money  and energy  on such  fruitless  or
futile litigation  is able  to devote  its attention to more
constructive work in the larger
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, Ist 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 therefor  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 he construed in a narrow sense
so as  to confine the parties to the family arrangement only
to persons  who have  a legal title to the property. Even so
it cannot  be disputed that the  appellant Kale  being the
grand son of Lachman and therefore a reversioner at the time
when the  talks for compromise` took place was undoubtedly a
prospective heir  and also  a member  of the  family.  Since
respondents 4  & 5  relinquished   their claims in favour of
the appellant  Kale in respect of  Khatas  5 &  90 the
appellant, according  to the  authorities  mentioned  above,
would  be   deemed  to have  antecedent  title  which was
acknowledged by respondents 4 & 5. Apart from this there is
one more  important consideration , which clearly shows that
the  family   arrangement  was undoubtedly  a  bona fide
settlement of  disputes. Under the  family  arrangement  as
referred to  in the  mutation petition the respondents 4 & 5
were given  absolute and  permanent rights  in the  lands in
dispute. In  1955 when the compromise is alleged  to have
taken place the Hindu Succession
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  nor  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
upto 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 the 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. The 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.
228



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.