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TMI Blog1998 (3) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... land measuring 1350 sq.mts. after allowing 1000 sq.mts. towards his family entitlement under Section 5(1) of the Act, since his family consists of himself and his wife only. 4. The petitioner herein contested the notice inter alia contending that the property comprised in registered sale deed dated 11.12.1962 was purchased from and out of the sale proceeds of his father's property at Chittor Road, Ernakulam, was given a sum of ₹ 10,000 for purchase of the land in his name and a sum of ₹ 14,000 left in his hands by his parents for purchase of property for the benefit of three daughters of his eldest brother, G. Divakar Pai. Till the property was purchased, the amount was treated as a loan and the interest was paid by the petitioner. His brother was mostly employed in the northern parts of India and was very reluctant to purchase any landed property in Madras or Cochin either in his own name or as guardian of his minor children, because he felt that there was always a danger of vacant land being encroached upon by squatters and it would be difficult for him to look after any such property. It was for this reason that in the month of January, 1961, an application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pai on 21.5.1976 and the plot of Mrs. Madhy P. Shenoy, 2nd daughter of his brother was delivered to him on her behalf on the same date. All the three of them have acknowledged the receipt of the plan and his letter confirming delivery of possession on his office copies and his brother acknowledged the receipt of the same in his delivery book. Thus he had discharged an obligation imposed on him by his parents under a family arrangement and also discharged an obligation in the nature of a trust under Section 90 of the Trust Act and effected a partition of a joint property purchased with the aid of monies left by his parents for the purchase of property for himself and his brother's children, from the sale proceeds of his father's Ernakulam property, left in his hands. 5. He has produced evidence of kist receipt issued to Mrs. Latha Kini, Mrs. Madhu P. Shenoy and Mrs. Nirmala Rao as early as 14.3.1977. These receipts show the pattadar as Archbishop and Patta Number is given as 207. He has also produced receipts Issued to him for kist bearing the same patta number in earlier years. His nieces have written immediately after the partition that they are the owners of the differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine though they be, regarding disposal of property prior to the Act unless they are backed by the registered deeds. It is also contended that there is no specific reference made in the said sale deed to the effect that the said land was purchased by the petitioner for himself and his brother's daughters from and out of the sale proceeds of their ancestral property at Ernakulam, as now contended by the petitioner herein and the plea that the joint family property was partitioned orally among himself and his brother's daughters as on 27.5.1976 is not acceptable. Since the title of the said land has not been transferred from the petitioner to others by way of registered documents prior to 3.8.1976, it is correct to hold that the petitioner is the title-holder of the said entire property as on 3.8.1976. They denied the other allegations, such as no opportunity was given to the petitioner to examine the witnesses, etc. and have affirmed the reasons assigned in the impugned orders. 8. From these pleadings, the question for consideration is whether pre-Act- Partition in the form of oral family arrangement embodied under Ex.G-1 and acted upon can be recognized in law, though not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in what properties the parties possess." In Sahu Madho Doss v. Pandit Mukand Ram, AIR 1955 SC 481, the Apex 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 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 little 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho has a title to it to a person who has no title". "Apex Court in Kale and Ors. v. Deputy Director of Consolidation and others, [1976] 3 SCR 202 and Ramcharandas v. Girijanandini Devi and ors., [1965] 3 SCR 841, also took the same view and held that a "family arrangement" proceeds on the assumption that the parties, in whose favour the arrangement was made and who, under that arrangement, come to have definite and positive share in the property, is not a transfer but is only a recognition of the title already existing in them. It was also pointed out by this Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and ors., AIR 1966 SC 292, as also in an earlier decision in Ramcharandas v. Girija Nandini Devi, [1965] 3 SCR 841 that it was not necessary to show that every person taking a benefit under a family arrangement had a possible claim or even if they are related, a semblance of a claim. Gajendra Gadkar, C.J. in V. N. Sarin v. Ajit Kumar Poplai, [1966] 1 SCR 349 observed that "the true effect of partition was that each co-parcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family." 11. Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellip; 3 grounds (3) Miss. Lalitha D. Pai Miss. Mridula D. Pai Miss. Normal D. Pay … 6 grounds By guardian G. D. Pai, Chief Maintenance Engineer, Orient Paper Mills, Brijraj Nagar. Balance … G. Vasantha Pai, Advocate. 13. Having regard to the source of money, the correspondence and ratification, it is evident that the petitioner held this property though stood in his name for and on behalf of his brother's daughters and thus it was once belonged jointly to the members of the family or to those who are related to the petitioner and he held it as a trustee for them. Once it is held that a person is a co-owner of the lands in question, his possession however long it might be unless it is adverse to the other co-owners cannot confer on him any right. A co-owner can get his property partitioned from another co-owner and such right to partition cannot be resisted. Partition is nothing but adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. 14. The appellate authority has held that there was no valuable consideration. While recording this finding the appellate authority has lost sight of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le deed is also not correct because purchasers cannot be executants. The other reasoning that the entire correspondences are private documents and no mention has been made in the sale deed of 11.12.1962 of the shares of the three daughters is also not correct for the simple reason that the appellate authority has examined and measured the weight of all these documents as relevant and genuine documents and also held that the property meant for three nominees. So long a member of a joint family can hold the property for himself and on behalf of others, there is no bar to purchase the property in one's own name. 16. The decision relied on by the learned Government Pleader in 1995 W.L.R. 411 is in respect of post-Act sale arrangements or agreements and does not relate to any concluded family arrangement or partition that had taken place prior to the Act and can therefore be safely distinguished from the present case. Section 27 as well as Sec. 43 of the Land Ceiling Act are not retrospective in operation but prospective only. 17. The contention of the petitioner that the Government has adopted double standards and thus exists element of discrimination stands to reason. The fact r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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