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
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
