TMI Blog1976 (1) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stranger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la Khunni Lal Ors. v. Kunwar Gobind Krishna Narain and Anr.( L. R. 38 T. A. 87. 102.) 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 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(A.I.R. 1914 P.C.44. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a right of succession or 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(A.I.R. 1966 S.C. 292, 295.) 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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([1973] 2 SCC 312.) 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. (6) If the terms were reduced to the form of a document and, though the value was ₹ 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 (A.I.R 1933 Oudh 347, 348-349) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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; (3) that in pursuance of the compromise both the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (AIR 1961 Pat. 79.) and Mst. Bibi Aziman and another v. Mst. Saleha and others (AIR 1963 Pat. 62.) 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 Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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,( AIR 1947 All. 177.) Chief Controlling 6 Revenue Authority v. Smt. Satyawati Sood and others(AIR 1972 Delhi 171.) and some other authorities, which, in our opinion have no bearing on the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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