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Shambhu Prasad Singh Versus Mst. Phool Kumari and Ors.

1971 (3) TMI 123 - SUPREME COURT OF INDIA

Civil Appeal No. 1655 of 1966 - Dated:- 24-3-1971 - I.D. Dua,J.M. Shelat and Vashishtha Bhargava For the Appellant/Petitioner/Plaintiff: D. Goburdhun and R. Goburdhun, Advs For the Respondents/Defendant: S.V. Gupte, and U. P. Singh, D.P. Singh, and N. Nettar, Advs.for Respondent No. 1and U.P. Singh for Respondent Nos. 2 to 4, JUDGMENT J.M. Shelat, J. 1. Two questions arise in this appeal. The first is whether the transaction evidenced by Ex. 1, dated March 20, 1915 was a family arrangement so as .....

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dated January 20, 1898, the land on which the house in dispute stands. His son, Nankhu, the deceased father of the present appellant, was taken in adoption sometime prior to March 20, 1915 by Ramji Singh and his wife Patreja Kuer as they had no issue, whereupon Nankhu ceased to have any interest in the properties owned by Amar Singh and his branch. In 1933, Nankhu and the present appellant, then a minor, filed Suit No. 33 of 1933 against Sonadhari Tarkeshwar, Baijnath and Reshmi Kuer (the widow .....

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application was filed by the parties settling that suit. But, as the suit had nothing, as aforesaid, to do with the house in dispute, nothing was said about the allegation that Nankhu had been paid off in respect of his interest in that house. 4. In 1949, Nankhu and the appellant filed the instant suit for a declaration of their half share in the house in dispute. In answer to the suit, the respondents raised three defences: (1) that Nankhu and the appellant derived no interest under Ex. 1, (2) .....

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er respondents. These appeals were heard first by a learned Single Judge of the High Court. Before the learned Single Judge, the finding of the Trial Court that Nankhu and the present appellant had not relinquished their interest in the house on their being paid the price thereof was not disputed. The only questions agitated before the learned Single Judge, therefore, were whether Nankhu had a half share, that is to say, whether he derived his title to the half share under and by virtue of Ex. 1 .....

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d the appellant was that there were outstanding disputes between the different branches of the family of Rajkumar, and those disputes were ultimately settled at the instance of and with the aid of certain family friends resulting in Ex. 1 by way of a family arrangement. therefore, even if Nankhu and the appellant were not able to show their anterior title to the house, they were entitled under Ex. 1 to a half share therein. The learned Single Judge accepted the contention raised by Nankhu and th .....

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apprehension in the mind of Amar Singh of a future dispute and that it was such an apprehended dispute which Ex. 1, while dealing with the house settled. The learned Single Judge added that even assuming that there was no existing or apprehended dispute and the settlement was made out of consideration for the peace of the family or preservation of its properties, the settlement would have to be regarded as a family arrangement. Regarding the plea of adverse possession, he upheld the finding of .....

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ture of Ex. 1, and as to the adverse possession. On the first question the reasoning adopted by the Division Bench was on the following lines: (1) that the executants of Ex. 1 formed three conflicting groups, namely, (a) Suba, Faujdar and Balkeshwar constituting one group of members of Lalji's branch, being executants 1 to 3; (b) Raghunandan and his son, Kamaldhari, being executants 4 and 5 and constituting Raghunandan's branch; and (c) Amar Singh for himself and as the guardian of Baijn .....

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ar's family were still members of an undivided Hindu family, and that therefore, although the properties stood in the names of and were in possession of individual members, they continued to be joint family properties including properties standing in the names of female members, namely, Reshmi and Patreja; (b) the allegation by executants 4 and 5 (Raghunandan's branch) that all the four branches of Rajkumar's four sons were separate and yet claiming share in the properties standing i .....

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rest of the members of the family of their claims in properties standing in the names of or in possession of particular members, and thereby acknowledging their anterior title in such properties. In fact Nankhu had no such anterior title, nor could be in law have any such title in the house in dispute in view of his having got out of Amar Singh's branch as a result of his adoption by Ramji; (4) that there was no subsisting or apprehended dispute between Amar Singh and his family, on the one .....

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d no application; (5) that the recitals in Ex. 1 showed that the only dispute which prevailed at the time was "branchwise" and in that dispute Nankhu did not set up any contest against Amar Singh and his branch and indeed, both of them acted in concert, both claiming that the members of Rajkumar's family were separate and the properties standing in the names of Reshmi and Patreja were their exclusive properties; (6) that acknowledgement of exclusive title of Amar Singh and Sonadhar .....

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t. The conclusion of the Bench clearly signified that it had relied on two fundamental premises: (1) that there were only three sets of executants, the third set consisting of executants 6, 7 and 8, and (2) that Amar Singh and Nanhku had acted in concert as there were no conflicting claims by and between them. 7. In view of this conclusion there was no need for the Division Bench to go into the question of adverse possession. However, it decided to do so for the reason that although the finding .....

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stence. The Division Bench was impressed by the fact that though only recently, in March 1915, Nanhku's half share in the house had been acknowledged in Ex. 1, his name was deliberately omitted in Ex. E, which meant that Sonadhari and Baijnath had openly asserted their title to the whole of the house and yet Nanhku took no steps to assert his title. Nor did he at any time pay his share of the municipal taxes and the costs of repairs carried out later on by Baijnath. The Division Bench was al .....

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en and continuous throughout the statutory period. As regards the evidence that Nanhku and sometimes his wife came and stayed in the house, the Division Bench took the view that these were casual visits "in the nature of visits of guests of the defendants", and therefore, did not have the effect of interrupting the continuity and the exclusiveness of possession by the respondents. The Bench even observed that the respondents had completed their title by adverse possession long before B .....

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e said to be a family arrangement. It is not necessary to advert to them as most of them have been considered by this Court in its previous decisions, wherein principles as to when an agreement can properly be regarded as a family arrangement have been set out. Thus, in Pullaiah v. Narasimham A.I.R. 1966 S.C. 1837 after setting out how courts in England view family arrangements, Subba Rao, J. (as he then was) observed that the concept of such a family arrangement has also been accepted by courts .....

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fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such arrangement than to avoid it. Even in England, family arrangements are viewed as arrangements governed by princip .....

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gland, (3rd Ed.), Vol. 17, 215). Thus, in Williams v. Williams [1867] 2 Ch. A. 294 the Court held that a family arrangement might be such as the court would uphold although there were no rights in dispute, and if sufficient motive for the arrangement was proved, the Court would not consider the adequacy of consideration. But the question of consideration or mutuality would arise, as Williams' case [1867] 2 Ch. A. 294 shows, when other considerations, such as existing or an apprehended disput .....

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t is made is explained by Bose, J., in Sahu Madho Das v. Mukund Ram [1955] 2 S.C.R. 22 in the following words: 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 they had previously asserted, to the portions allotted to them respectively. That explains why no conveyance is require .....

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olding "an arrangement under which one set of persons abandons all claims 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 them as gifts pure and simple from him or her or as a conveyance for consideration when consideration is present&quo .....

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Kuwar v. Rani Hulas Kuwar (1873) L.R. 1 IndAp 157. therefore, it is not necessary that there must exist an anterior title sustainable in law in such a person which the others acknowledge. 10. The arrangement under challenge has to be considered as a whole for ascertaining whether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. It is not necessary that there must exist a dispute, actual or possible in the future, i .....

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to see if the contention of the appellant that it was a family arrangement is correct or not. 12. The document Ex. 1, after reciting the death of the common ancestor, Rajkumar, his leaving him surviving four sons and the deaths of certain other family members thereafter, reads as follows: Signs of ill feeling developed among us, the executants Nos. 1 to 8, and at the time of survey and settlement operations, dispute in connection with the properties arose. On account of dispute, wrong statements .....

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the names of a certain member of the family as well as those in the name of certain female member of the family, belong to the joint family. Contrary to this, the claims and allegations of us executants Nos. 4 to 5 were that all the four sons of Raj Kumar Singh became separate and that executants Nos. 1 to 3 always continued to remain separate from the (other) executants and executants Nos. 4 and 5 separate from the (other) executants and executants Nos. 6 to 8 separate from the other executants .....

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ugh no party was member of a joint family, nor was any property joint. As the dispute among us, the executants is contrary to the real state of affairs, and in case the said dispute continues there is apprehension of consideration loss and damage to us, the executants, therefore, on the advice of the well wishers of the parties and of the respectable persons and on the advice of the legal advisers of the parties, as also with a view to set at rest all kinds of dispute, it was settled that all th .....

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the land Registration Department etc. and the name should be entered if the same is not entered and the other parties totally gave up their claim with respect thereto. Then follow paras 1 to 4 in each of which certain properties are set out, and in respect of which, title of each of the four sets of the executants is acknowledged by the rest. Para 4, which relates to properties falling to the share of Nanhku, executant 8, commences with the declaration by the rest of the executants, including A .....

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tion". Following up the arrangement made in Paras 1 to 4, four schedules giving particulars of properties which were acknowledged to be belonging to the four sets of executants were appended to Ex. 1. As regards two houses, one at Rajipur and the other in dispute, Schedules 3 and 4 both set out a half share in them as belonging to executants 6 and 7 and the other half as belonging to executant 8, i.e. Nanhku, in each of them. 13. As already stated, the fundamental premise on which the Divis .....

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s between Amar Singh, Sonadhari and Nankhu, that in fact the three of them acted in concert, and that therefore, one half share given to Nanhku in the house in dispute was altogether voluntarily given without any anterior title and without any claim or dispute raised by Nanhku in respect thereof. In our view, both the premises were incorrect rendering the conclusion drawn therefrom untenable. 14. It is true that Amar Singh had in 1898 purchased out of his own moneys the land on which the suit ho .....

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e upheld in law. therefore, if Amar Singh and the other executants or some of them were to challenge, for instance, the factum or the validity of Nanhku's adoption, or if notwithstanding his adoption, Nanhku were to make a claim in properties held by Amar Singh and his branch or if some of the executants were to claim that the family of Rajkumar was still a joint and undivided family or that though the members of the family were separate, the properties held in the individual names of some o .....

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put into jeopardy not only the interests of Amar Singh and Nanhku but also the harmony of the family. 15. The recitals in Ex. 1 clearly show that whereas members of Lalji's branch were claiming that the family was still joint and undivided, and therefore, they had interest in all the properties irrespective of their standing in the names of particular individuals, Raghunandan and his son claimed that the members of the family were not joint and yet claimed share in all the properties includ .....

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f Amar Singh and Nanhku in the different properties and not the same properties. Their interests, therefore, were not identical and there was thus no reason for them to act jointly. Indeed, there was no evidence whatsoever and nothing in Ex. 1 itself to show that they were acting in concert as assumed by the Division Bench. 16. It is true that the recitals in Ex. 1 do not expressly set out any conflict of claims between Amar Singh and Nanhku. Nevertheless, it is significant that in para 4 of Ex. .....

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cluding such a declaration and in particular joining executants 6 and 7 in such a declaration. If Amar Singh and Nanhku were acting in concert why had Amar Singh and his son, Sonadhari as executants 6 and 7, to be joined as declarants to the adoption of Nanhku. Para 4 of Ex. 1 also shows that there were certain bonds and mortgage deeds standing in the name of Patreja Kuer which were acquired from out of the personal funds of Ramji. Such a statement had to be acknowledged in paragraph 4 presumabl .....

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sputes amongst the different branches of the family, Nanhku and Amar Singh were acting in concert or that there was no conflict of interest between them. In our judgment, the parties to Ex. 1 arrived at a settlement in view of claims and cross claims by some against the others. Taken as a whole and in the light of the recitals and the statements in the operative part of the document indicating conflicts amongst the members of the family, the document represented an arrangement bona fide entered .....

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ish these characteristics is on the adverse possessor. Accordingly, if a holder of title proves that be too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession the title which he holds .....

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SCR195 and also Mohammad Baqar v. Naim-un-Nisa Bibi. AIR1956SC548 But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such a manner as it was possible to do. (see Wuntakal Yalpi Chanabasavana Gawd v. Y. Mahab .....

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dge gave a concurrent finding that even if the possession by the respondents was adverse the appellant and his father had done acts of possession at various intervals which were sufficient to interrupt both the continuity and the exclusiveness of possession by the respondents. The Division Bench, however, did not agree with the concurrent finding on a re-appraisal of the evidence by it It is not necessary for us to go into the details of that evidence once again as certain facts clearly emerge o .....

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taxes and Nanhku at no time paid his share of the taxes or his share in the cost of repairs and laying of a water pipe in the house, and (3) that though in his written statement in suit No. 33 of 1933 Baijnath claimed that he was in exclusive possession of the house as he had paid Nanhku the proportionate price of his share, Nanhku did not lake any steps to vindicate his title until he and his son filed the present suit in 1949 by which time the statutory period for adverse possession had alread .....

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rk to Patna. In 1915-1916, when Sonadhari got his name and that of Baijnath entered in the Demand Register (Ex. E) it might be that Nanhku did not know that they had omitted his name. His half share in the house had been acknowledged in Ex. 1 only recently by Amar Singh and Sonadhari as well. Relations between the parties had not yet become unfriendly so as to make Nanhku suspect that his name would be deliberately omitted in the municipal records or that possession by Sonadhari and later on by .....

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demand was refused by Nanhku. The High Court on these facts was not right in observing that the title of Baijnath was already completed by adverse possession long before Baijnath filed his written statement in 1933, as mere use and enjoyment by him of the house, in the absence of such use amounting to ouster, would not make it adverse possession. 22. It was for the first time that in the written statement filed in 1933 Baijnath openly asserted his title to the whole of the house. Since that asse .....

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statement, was settled in 1941. In the compromise application filed by Nankhu and Baijnath, both of them stated that they were residing in that house. That assertion by Nanhku was never disputed by Baijnath. 23. But apart from that assertion there was the fact that Nanhku had no other place to reside in Patna. His case was that whenever he visited Patna he used to stay in the house in dispute. Apart from that assertion being natural, his evidence in that connection was corroborated by Prabhu Na .....

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relations between Nanhku and Baijnath became friendly. If that be so, it was natural that Nankhu would stay in the house whenever he visited Patna in 1941 and thereafter. 24. The Municipal Survey Khasra (Ex. 2), dated December 19, 1933 mentions Nanhku along with Sonadhari and Baijnath as owners of the house. Since this entry was made after Baijnath had made a hostile claim to the entire house in the written statement filed in suit No. 33 of 1933 on September 16, 1933, the entry must presumably .....

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months before the date of the khasra. That indicates that his claim was merely a counterblast against Nanhku's suit. 25. The view of the Division Bench that the occasional putting up by Nanhku and his wife in the disputed house was merely casual and was in the nature of visits as guests of the respondents cannot be accepted. Such stay, however occasional, would not be casual as it was accompanied by an open assertion of his title as evidenced by the khasra (Ex. 2). It could not also be that .....

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e view that the land sold under Ex. C appertained to or was part of the land on which Amar Singh had put up the disputed house, and that although Baijnath and Tarkeshwar sold part of that land, no objection was taken at any time to such a sale by Nanhku. The recitals in Ex. C show that the land sold under Ex. C. was jointly purchased on January 20, 1898 by Amar Singh and one Gajadhar Singh for construction of a house thereon. Amar Singh had a share in the said land to the extent of 1 katha 15 dh .....

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