In Raghubir v. Moti, (1913) 35 All 41 PC and Anurago Kuer v. Darshan Raut, AIR 1938 PC 65, the partition by agreement was explained by observing, that, if there be a conversion of joint tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of the separate right. This was also held in Amrit Rao v. Mukundrao, (1919) 15 Nag LR 165.
The “family arrangements” also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result , not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate. Among all the coparceners, it has been held that an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status
IN THE HIGH COURT OF ALLAHABAD
Decided On: 30.05.2013
Appellants: Harey Krishna Agrawal and Others
Vs.
Respondent: Jairaj Krishna and Others
Vs.
Respondent: Jairaj Krishna and Others
Hon'ble Judges/Coram:Sudhir Agarwal , J.
Citation: 2013(7)ADJ447, 2013(6) ALJ 282., 2014 (102) ALR 88, 2014 1 AWC741All, 2014 122 RD240
1. Two of the several defendants, who did not contest the suit by filing written statement but felt aggrieved by the judgment of the Lower Appellate Court (hereinafter referred to as "LAC"), have chosen to file this appeal, under Section 100 C.P.C. The suit was instituted by Sri Jairaj Krishna, Anil Kumar and Suneel Kumar, sons of (late) Bindeshwari Prasad; and, Smt. Rammani Devi, widow of Late Bindeshwari Prasad, impleading the widow, sons and daughters of Late Narain Das Agarwal as defendant Nos. 1 to 12 (first set) and widow, sons and daughters of Late Ram Narain as defendant Nos. 13 to 20 (second set).
2. All the parties belong to common ancestors having initially, a joint business. It was pleaded that the parties resided jointly and carried on joint business till 1943. Thereupon there was a partition in family property, but cloth business continued to run jointly. The plaintiffs were assigned half of share and defendants 1 to 12 and 13 to 20 were assigned 1/4 share each.
3. Subsequently in 1969, due to difficulty faced in running joint business, parties underwent another settlement (oral), wherein the entire joint property and business was divided half between the plaintiffs and defendants each. The oral settlement was given effect to, and, thereafter, parties managed their affairs accordingly. Shop No. 24, Chowk, Allahabad came to the share of plaintiffs and continued to be run by them, being in their possession. Defendants 13 to 20, at that time, were residing on upper floor of House No. 86, Jawahar Square, and it was decided that they shall continue to stay, but as soon as possible, vacate the same, and, thereafter, a partition wall shall be raised.
4. It was pleaded that pursuant to above arrangement, since 1969, defendants 13 to 20 became licensee and continued to reside in the House in the capacity of licensee. However, they were not inclined to vacate the aforesaid premises, hence, a notice was given on 29.10.1977. The suit was filed with the prayer that a partition wall be allowed to be raised in House No. 86, Jawahar Square, and, the possession of part of property, fell in the share of plaintiffs, be given to them, and, in case the Court finds that there is no such mutual partition/family settlement, partition between the family be made by the Court, giving plaintiffs' half share of property in dispute, as per the settlement of 1943 and 1969 and allow possession of the property accordingly.
5. Before the Trial Court (hereinafter referred to as "T.C."), defendant No. 14, Sri Shambhoo Nath Agarwal (now deceased and substituted by his heirs and legal representatives) filed written statement, denying assertions of the plaint. He stated that defendant Nos. 13 and 15 to 20 are residing on the upper part of House No. 86, Jawahar Square, Allahabad and no notice has been given to them. He admits that plaintiffs are carrying on business at 86, Jawahar Square but they have occupied House No. 24, Chowk, unauthorisedly and illegally. There was no partition of House No. 86, Jawahar Square and 24, Chowk, Allahabad and both these properties are still joint family properties. He, however, admitted that plaintiffs have half share in the aforesaid property and 1/4th share is that of defendant Nos. 14 to 20 as a result whereof, defendant No. 14 has 1/32 share and the same should be separated.
6. Another written statement was filed by defendant No. 2 (Sri Krishna Chandra, now deceased and substituted by his heirs and legal representatives). He admitted some of the assertions of plaint while denying others. He said that the cloth business jointly continued till 1943 at 86, Jawahar Square and 24, Chowk, Allahabad. Thereafter, the business continued in partnership but the defendant No. 2 did not continue as partner. He admits that defendant Nos. 13 and 15 to 19 are residing on the upper portion of House No. 86, Jawahar Square and carrying on business thereat, but the possession at 24, Chowk, Allahabad was unauthorised and illegal. He also said that there was no partition of House No. 86, Jawahar Square and 24, Chowk, Allahabad though half of the share of plaintiffs and 1/4th share of defendant Nos. 1 to 12 was admitted as a result whereof share of defendant No. 2 comes to 1/32.
7. The third written statement was filed by defendant No. 4. He partly admitted the assertions of plaint and partly denied. He also admitted that defendants are carrying on business at 86, Jawahar Square but their possession of 24, Chowk, Allahabad was illegal. He claimed his own share in both the properties as 1/32.
8. Fourth written statement was filed by defendant Nos. 1, 3 and 5 to 8. They disputed the claim of plaintiffs that they have half share in 86, Jawahar Square, Allahabad. It is said that Sri Lal Narain Das (died on 12.8.1966), ancestor of the defendants, secured land at 39, Jawahar Square (now 86, Jawahar Square) from Improvement Trust on 26.4.1961. He continued to be the sole owner thereof since it was purchased from the funds of his wife, Smt. Saraswati Devi. Therefore, Sri Bindeshwari Prasad or the present plaintiffs have no right or interest in the said property. Sri Lal Narain Das got a building constructed on the aforesaid land i.e. whereon building 86, Jawahar Square, a three-storied building, now situate. Plaintiffs are not in possession of 86, Jawahar Square. Settlement/partition of 1943 was denied asserting that no such partition took place. Sri Lal Narain Das had no authority to make such partition. 24, Chowk, Allahabad was solely in the tenancy of Sri Lal Narain Das and, therefore, nobody else except his heirs have tenancy rights in the said property.
9. The T.C. formulated 11 issues and the relevant ones i.e. Issues No. 1 to 4, 7 to 9 and 11 are as under:
1- Whether House No. 86, Jawahar Square and 24 Chowk, Allahabad were partitioned between co-sharers?2- Whether the site plan attached with the plaint filed by the Plaintiffs is correct?3- Whether Defendant No. 14 has 1/28th share and whether he is entitled to partition as per the said share?4- Whether Defendant Nos. 2, 4 and 14 are not in possession over House No. 86, Jawahar Square and 24 Chowk, Allahabad alongwith co-sharers of their line?7- Whether Defendant Nos. 2 and 14 are not partners in the business running in the aforesaid two premises?8- Whether Defendant Nos. 2, 4 and 14 are in possession of the aforesaid two premises?9- Whether any notice for partition was served upon Defendant Nos. 2, 4 and 14?11 - Whether the partition has already taken place by metes and bounds?
10. Issue No. 1 was decided in affirmative and in favour of plaintiffs holding that partition between co-owners of the family had already taken place. Similarly issue No. 3 was also held in affirmative and in favour of plaintiffs. On issue No. 3, T.C. held that defendant No. 14 is entitled to 1/28 share in the suit property. On issues No. 4 and 8, it held that defendant Nos. 2, 4 and 14 are not in possession of the house in dispute and their share has also been separated. Issue No. 5 was already decided by order dated 23.2.1982 in negative, i.e., against the defendants and in favour of plaintiffs. Issues No. 6 and 10 were decided in affirmative and in favour of plaintiffs. On Issue No. 7, T.C. held that as per own case set up by defendants 2 and 14, they are not partners in the running business and that is how this issue was decided in negative. Issue No. 9 was not pressed by the parties, hence, decided in negative and against the defendants. Issue No. 11 was decided in affirmative holding that partition is with metes and bounds. Consequently, T.C. decreed suit, vide judgment and decree dated 26.9.1988.
11. There against defendants 15 and 16, (the present appellants) i.e. Harey Krishna Agarwal and Dinesh Chandra Agarwal came in First Appeal No. 158 of 1989. The LAC noticed that aforesaid defendants had not contested the suit by filing written statement and suit was decided in their absence. However considering written statements and evidence filed by other contesting defendants i.e. 1, 2, 3, 4, 5 to 8 and 13, the LAC, vide judgment and decree dated 16.11.2012 dismissed appeal. It is this judgment, which has given rise to the present appeal.
12. Before LAC, issue with respect to partition deed of 1943 was raised and considered. It held that the partition deed in question is registered and being more than 30 years old (20 years old in view of U.P. Amendment in Section 90 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872"), therefore, presumption about its execution would have to be drawn. Moreover, no otherwise evidence was adduced by any of the defendants and, therefore, not only the aforesaid partition deed stood proved but it was also proved that land in dispute was joint family property, handed over by ancestors of Lal Narain Das.
13. LAC also considered the question that mere non filing of written statement by itself would not justify T.C. to decree the suit but then further held that in the present case, T.C. has not decreed the suit by treating plaint assertions to be correct in absence of a written statement by defendant-appellants, but, on the contrary, T.C. has looked into pleadings, evidence available on record, and, has based its findings thereon. The present suit was not one wherein defendants did not contest the suit at all. Only defendant-appellants, i.e., defendant Nos. 15 and 16 did not contest by filing written statement. Other defendants filed their written statements to contest the suit. Therefore, it cannot be said that suit had been decided by T.C. by treating plaint assertions to be correct and proved, in absence of a written statement of contesting defendants including defendant No. 13 (who was earlier defendant No. 14 and comes from the branch of defendant Nos. 15 and 16). In view thereof, the case in hand is not one which has been decided by taking recourse to order VIII Rule 10 C.P.C. which contemplates a situation where the suit is not contested by defendants at all.
14. Having said so, LAC further held that partition in 1943 made it clear that members of family therein decided to continue in the disputed building, namely, House No. 86, Jawahar Square, Allahabad and Shop No. 24, Chowk, Allahabad undivided since business had been carrying on thereat and continued to be joint though converted in a partnership firm. In the building, plaintiffs were assigned half share and defendants (first and second sets), were assigned 1/4 share each. Joint business continued, having converted into a partnership business, with the share of partners as 1/3 of each side.
15. Then in 1969, an oral settlement, in respect to two disputed houses and business came to be made according to which House No. 86, Jawahar Square, Allahabad, southern portion, from ground to top, half was assigned to plaintiffs, central 1/4 portion to Lal Narain Das and north 1/4 part to Sri Ram Narain. The parties decided to raise a partition wall. Upstairs came to the share of defendants and, therefore, plaintiffs were supposed to construct their staircase in the part of property, came to their share. All the businesses were separated. All the three parties separated shops on the ground floor, raising separate walls. The plaintiffs got up staircase constructed in their portion, also got installed a new shutter at the shop and continued to run business in clothes. The successors of Sri Ram Narain, i.e. defendant Nos. 13 to 19, resided in the upper portion of House. It was also decided that they shall withdraw from the portion which came to the share of plaintiffs and thereafter parties shall raise their separate walls also.
16. The oral settlement sought to be proved by deposition of Sri Jairaj Krishna Agarwal, P.W. 1. On behalf of defendant Nos. 1 to 3, Devi Prasad, an old family servant was examined, who proved settlement of 1969 and also proved that the said settlement was actually given effect.
17. Sri Krishna Chandra Agarwal, D.W. 1, himself deposed that there was a settlement in 1969 though further said that it did not result in partition of disputed property with metes and bounds. However, looking to, and in entirety of the statements of P.W. 1, P.W. 2 and D.W. 1, LAC made discussion thereof, in paras 33, 34, 35 and 36 of the judgment. It came to the conclusion that aforesaid settlement resulted in division of property as well as business, by metes and bounds.
18. The partition of 1943 and settlement of 1969 was disputed by defendant-appellants before LAC and this Court on the ground that it has resulted in undue advantage to plaintiffs, giving major share of property to them, LAC has not accepted the same for the reason that settlement having taken place at such a long time ago, and also, considering the fact, that, plaintiffs thereafter had proceeded to raise a substantial construction etc. at their own cost, such plea at this late stage, that too, at the instance of one or two defendants, should not be acceded to. It is in these circumstances and looking to various legal aspects of the matter, as argued before LAC, it has found no substance in defendant's appeal and dismissed the same.
19. This Court while hearing appeal under Order 41 Rule 11 C.P.C., formulated following substantial questions of law:
(I) Whether a family settlement would be valid and binding on all the parties constituting the coparceners of joint hindu family, if all the members, i.e., all the coparceners of joint hindu family are not present at the time of alleged settlement?(II) Whether a defendant who has neither filed written statement nor led evidence before Trial Court, can challenge the decree in appeal, on merits, though he has not contested the matter?
20. After hearing parties at length and considering the fact that defendant-appellants did not contest plaint assertions by filing written statement, in order to investigate various submissions advanced by parties, I find that to clarify the things, one more substantial question of law need be formulated and it is as under:
(III) Whether a coparcener can challenge a family settlement/partition, if he has not challenged it by filing written statement and denying the plaint assertions and can a presumption be drawn against such a defendant that he has admitted plaint assertions and is now barred to challenge the decision of Trial Court by applying the principle of waiver or estoppel or acquiescence?
21. Some of the facts, which are admitted by the parties and evident from the findings of Courts below, not disputed before this Court, are as under.
22. The parties had common ancestors constituting members of, and, part of a joint family, flowing from two brothers, Gajadhar Prasad and Anant Prasad. Except the defendants, referred to above, who filed their written statements, others (including appellants) did not contest the matter either by filing their written statements or otherwise, before T.C., despite service of notice, till the matter was decided by it. Thereafter also, other defendants have not chosen to challenge the judgment and decree except the defendant Nos. 13 and 15. Further, there was a family settlement/partition of 1943 (Paper No. 59A) and this is a registered document. There is no dispute about it.
23. The only dispute raised before this Court by defendant-appellants is that the alleged family settlement of 1969, said to be oral, as a matter of fact, never took place. The defendant-appellants were not party thereto and such settlement is not binding on them. It is said that unless all coparceners of Joint Hindu Family are present and agree, there cannot be a family settlement, binding on all the members of family. Submission in effect is that an oral family settlement, unless proved by the plaintiff to the extent that all the coparceners of Joint Hindu Family property, participated and agreed thereto, cannot be a binding settlement on all the members and cannot be acted upon.
24. Per contra, Sri A.K. Gupta, assisted by Sri Ashish Agarwal, Advocates, pleaded that the family settlement can be oral. It took place in 1969 between the families of three brothers. It was never disputed by any of the parties or other coparceners of Joint Hindu Family. It was given effect to and the parties managed their affairs accordingly. Hence, in these circumstances, a partition, which has continued for decades together between the parties, should not be allowed to be undone at the instance of one or two members of family, particularly, when they have not chosen to contest suit before T.C. He also contended that non filing of written statement amounts to acceptance of plaint's assertions and appellants are barred from challenging family settlement of 1969 under Order 8 Rules 3 and 5 C.P.C.
25. Both the sides have referred to and relied on certain authorities, which I shall refer to and discuss when the occasion comes.
26. First I propose to consider the second question.
27. Sri Siddharth, learned counsel for the appellants has elaborated on this aspect by submitting that though under Order VIII Rule 10, if a defendant does not file written statement, the Court may pronounce judgment against him or make such order in relation to the suit, as it thinks fit, but that by itself does not mean that Court can grant decree by allowing suit without requiring plaintiff to prove his case, inasmuch as a plaintiff cannot succeed in a suit unless he proves his case. He however did not dispute that there may be certain situations where the facts stated in plaint are such, if not disputed or denied by defendant, there may not be any occasion or justification or reason to seek any further evidence from the plaintiff, and, the Court may pronounce its judgment, but such would be very rare cases, and normally the Court will have to ask the plaintiff to prove his case by leading evidence and not otherwise.
28. To my mind, reference to Order VIII Rule 10 in the case in hand is totally misconceived though as a general proposition some of the aspects referred to and argued by learned counsel for the appellants, as such, may not be said to be apparently erroneous or incorrect. In fact, to me, it appears that the appellants have misconstrued and mixed up the issue in question, with the fact of the case as also the provision, referred to above.
29. Order VIII Rule 10 has undergone various amendments but at the time the suit in question came to be decided, it read as under:
Rule 10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.
30. From a bare perusal, it is evident that aforesaid provision neither applies to present, case nor can be pressed into service, nor has actually been resorted to by T.C. Here is not a case where the defendants have not filed any written statement at all and the suit has not been contested. In fact, here is a case where most of the defendants have contested the matter by filing written statements while a few have not chosen to do so. The defendant Nos. 15 and 16, who are appellants herein before this Court, are those from the later lot. After the decision in suit, they have chosen to come forward to challenge decree of T.C. and then having lost before LAC, have come up further, i.e., before this Court. Rule 10 would apply where a party who was supposed to file written statement fails. The Court has discretion to pronounce judgment against him or pass such order in relation to suit as it thinks fit. In the present case, the T.C. has not chosen to pass any judgment against defendant Nos. 15 and 16, i.e., the present appellants, for merely they failed in filing written statement. On the contrary, T.C. has proceeded to permit parties to lead evidence and thereafter only, the suit has been decided since there were four sets of written statement of various defendants on record.
31. Order VIII, Rule 10 CPC enables Court that in a given circumstance, it may proceed to deliver the judgment but it is not obligatory or necessary in every case. Moreover, when there are several defendants and one or some of them have chosen not to contest the suit by filing written statement but other defendants have contested the issue by filing written statement, the Court, on its own, will not choose as to which defendant is the main contesting party and which is ancillary or useless or unnecessary and whose presence should be ignored. In such a case, it has to proceed by permitting the parties to lead evidence before deciding the suit.
32. The procedure thus has left discretion to the Court and what I find is that the T.C. has followed, very rightly and correctly, a just, fair and valid procedure, for deciding suit by permitting parties to lead evidence and thereafter only it has decided the matter and not otherwise.
33. In Balraj Taneja and another v. Sunil Madan and another, MANU/SC/0551/1999 : (1999) 8 SCC 396, the Court had occasion to consider on the scope of Order VIII Rule 10 and said:
30. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8.
34. The above quote has been reiterated recently in C.N. Ramappa Gowda v. C.C. Chandregowda (D) by L.Rs. and another, MANU/SC/0320/2012 : AIR 2012 SC 2528, wherein also, it has been held that Court is duty bound to adjudicate even in the absence of complete pleadings or in absence of pleadings of only one party. In para 14 of the judgment, the Court said that effect of non-filing of written statement and proceeding to try the suit is clearly to expedite disposal of the suit. It is not penal in nature wherein the defendant has to be penalised for non filing of written statement by trying the suit in a mechanical manner by passing a decree. Apex Court reiterated its earlier observations in following words:
We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 Code of Civil Procedure and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the Plaintiff in view of the deemed admission by the Defendant, the Court can conveniently pass a judgment and decree against the Defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgment without directing the Plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial. However, if the Court is clearly of the view that the Plaintiff's case even without any evidence is prima facie unimpeachable and the Defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial Court who is seized of the trial of the suit.
35. The above two authorities of Apex Court have been referred to and followed recently by this Court in Maharaji Kunwar v. Sheo Shanker, Second Appeal No. 2276 of 1977, decided on 10.4.2013.
36. In the present case all the parties belong to a family having common ancestors though with the coming generations, the member's branches have enlarged-The plaintiffs basically claim two facts. First, a partition made in 1943 which is though a registered instrument and, second, a family settlement made in 1969, which is an oral settlement but given effect to by all the parties.
37. Most of the defendants who filed their written statements admitted 1943 partition, while with respect to 1969 oral family settlement, some of them have admitted, some have denied in a restricted manner and some have denied in entirety. The plaintiffs proved aforesaid settlement and the fact that it was given effect to by all the concerned parties, adduced evidence through oral deposition of PW-1, Jairaj Krishna Agrawal and PW-2, Devi Prasad, which has been corroborated to some extent by DW-1, Sri Krishna Chandra Agrawal, son of late Sri Narayan Das Agrawal. He termed the settlement of 1969 as mutual arrangement of business and not as a partition. He admitted that as per mutual arrangement, the business was separated and was given effect to. Simultaneously, he also admitted that plaintiffs-respondents also made construction of upstairs in the part of house which came to their share and also started a new shop. Though he (DW 1) claimed that aforesaid settlement did not result in partition by metes and bound of the property and business, but termed it as a mutual arrangement of business. Those defendants who pleaded otherwise in respect of settlement of 1969, adduced no evidence, whatsoever, to support their stand. Besides, PW-2, Devi Prasad was an old employee in the family of parties who stated in his cross-examination that he was employed in family of both parties for the last 55-60 years. In a natural course he must have regard to all the parties yet he, as such, was not member of their family. Being an old employee, having worked for such a long time, for all purposes, he enjoyed confidence and status of a member of family. There was no reason nor any one suggested that PW-2 would have any intention otherwise to make statement to favour one or the other party. He clearly supported and proved oral settlement of 1969. I, therefore, find no error, illegality or fault on the part of LAC, in relying upon his evidence treating him to be an independent witness. Here, thus, is a case where the suit has been decided not merely for non-filing of written statement of defendants-appellants but after having evidence from respective parties and on appreciation thereof. Admittedly, the appellants did not adduce any evidence otherwise.
38. So far as right of defendants to challenge the judgment and decree of T.C. even though had not contested the suit by filing written statement, counsel for respondent could not show any statutory prohibition or dis-entitlement on their part in challenging final decision in suit, even if they did not contest the suit by participating before T.C. Not only this, if such an appellants can demonstrate that despite non-filing written statement, sill there is/are manifest error, illegality etc. in the judgment and decree passed by Courts below, on account whereof the same are unsustainable or have resulted in a manifest grave injustice, in violation of some legal principle or statutory provision etc., I find no bar or disability on their part in challenging the judgment and decree of T.C. Or LAC on merits also.
39. Accordingly the Issue No. 2 is answered in affirmative, i.e., in favour of defendants-appellants holding that not only they can file appeal but contest the matter on merits also despite, they had not filed written statement or led evidence before T.C. The only restriction would be that these appellants will have to confine to the record of proceedings and cannot be allowed to lead any evidence or bring a new fact before Appellate Court. They also cannot be allowed to fill in the gap at this stage.
40. The questions 1 and 3, to some extent are overlapping, hence can be dealt with together.
41. The defendant Nos. 15 and 16 claimed that family settlement of 1969, though oral, even if held proved by plaintiffs, it was neither a valid settlement nor binding on them, for the reason that all the coparceners of Joint Hindu family were neither present nor agreed to various terms and conditions as settled therein.
42. On the contrary, stand of plaintiffs is that senior members wherefrom the branches derived their share/interest were present and party to the said settlement. The same was actually accepted by all the parties. Rather, it was given effect to, implemented and executed and has continued so, since thereafter. The suit was filed after about 11 years, i.e., in 1980. At that time also there was no challenge to the factum of settlement of 1969 and about its execution/effect given by parties, but on the part of some of the defendants, there was a minor deviation/defiance. For setting it right by enforcing the settlement in that regard also, the suit in question was instituted. The defendant-appellants however never challenged the aforesaid settlement which was given due effect. They did not contest even the plaint assertions. Now they cannot be allowed to challenge the same so as to unsettle entire things which have become a fait accompli among the members of family. Moreso, when they (appellants) have not asserted such right of challenge by disputing or contesting plaint assertions by filing written statement. Counsel for appellants in support of his submissions has relied on the decisions in M.N. Aryamurthy v. M.D. Subbaraya Setty, MANU/SC/0479/1971 : 1972(4) SCC 1.
43. The case set up by Sri Gupta, appearing on behalf of plaintiffs-respondents is that in the facts and circumstances of the case, it is just and the Courts below are right in presuming that defendant-appellants had accepted plaint assertions. They are barred by principle of estoppel from taking a different stand in this appeal, founded on no pleadings of their own before Courts below, raising any factual dispute in regard to plaint assertions. Sri A.K. Gupta, Advocate placed reliance on Kale and others v. Deputy Director of Consolidation and others, MANU/SC/0529/1976 : AIR 1976 SC 807; Tek Bahadur Bhujil v. Debi Singh Bhujil and others, MANU/SC/0389/1965 : AIR 1966 SC 292; Karpagathachi and others v. Nagarathinathachi, MANU/SC/0357/1965: AIR 1965 SC 1752; Nitin Jain v. Anuj Jain and others, MANU/DE/7608/2007: AIR 2007 Del 219; Dhan Kaur and others v. Shamsher Singh and others,MANU/PH/0432/2005 : AIR 2005 P & H 283; Rajinder Kumar v. Iqbal Singh and others, MANU/DE/0564/2003 : AIR 2003 Del 441; Munna Lal v. Suraj Bhan and others, MANU/SC/0537/1975: AIR 1975 SC 1119; and, Radha Amma and another v. C. Balakrishnan Nair and others, MANU/SC/8436/2006 : AIR 2006 SC 3343.
44. In India and particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family going to the extent of even the concept of village community. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his off springs. The joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situations in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offspring would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
45. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
46. The "joint family" is normally a transition form from "patriarchal family" at the death of common ancestors or head of house. If the family chose to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joined not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common.
47. The intention to break joint family by effecting partition in respect of joint family property has always been considered with great respect, where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing.
48. In Appovier v. Ramasubba Aiyan, MANU/PR/0013/1866 : (1866) 11 MIA 75, Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai v. Sadashiv Dhundiraj, MANU/PR/0097/1916 : (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.
49. In Raghubir v. Moti, MANU/PR/0100/1912 : (1913) 35 All 41 PC and Anurago Kuer v. Darshan Raut, MANU/PR/0015/1937 : AIR 1938 PC 65, the partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject-matter. This may, at any time, be claimed by virtue of the separate right. This was also held so in Amrit Rao v. Mukundrao, MANU/PR/0100/1919 : (1919) 15 Nag LR 165 PC.
50. The "family arrangements" also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. (See, Ram Narain Sahu v. Musammat Makhana, MANU/PR/0024/1939 : ILR (1939) All. 680 (PC) and Puttrangamma and others v. M.S. Ranganna and others,MANU/SC/0115/1968: AIR 1968 SC 1018).
51. Further whenever there is a partition, the presumption is that it was a complete one both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.
52. Thus what is evident is that the term "family arrangement", "partition", "family settlement" etc. they all construe to be, and, convey, one and the same sense and meaning.
53. The word "settlement" has been defined in Oxford Advanced Learner's Dictionary of Current English by A.S. Hornby, Seventh edition at page 1390 as under:
the action of reaching an agreement; the settlement of a dispute, the conditions, or a document stating the conditions, on which money or property is given, an official agreement that ends an argument between two people or groups to negotiate a peace settlement.
54. In Black's Law Dictionary its meaning has been given as:
act or process of adjusting or determining; an adjusting; an adjustment between persons concerning their dealings or difficulties; an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other; arrangement of difficulties; composure of doubts or differences; determination by agreement; and liquidation.
55. Under some statutory provisions also definition of "settlement" has been provided. In Section 2(b) of Specific Relief Act, 1963, the "settlement" has been defined as under:
settlement" means an instrument other than a will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925) whereby the destination or devolution of successive interests in moveable or immovable property is disposed of or is agreed to be disposed of.
56. Section 2(24) of (Indian) Stamp Act, 1899 also define "settlement" as under:
settlement" means any non-testamentary disposition, in writing, of movable or immovable property made-(a) in consideration of marriage,(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or(c) for any religious or charitable purpose;and includes an agreement in writing to make such a disposition and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition.
57. In Sita Ram v. Board of Revenue, MANU/UP/0076/1979 : AIR 1979 All 301, this Court observed that the expression "settlement" means a non-testamentary disposition of property by an instrument in writing, containing even a declaration of trust, for distribution of property among the settlor's family or his dependent or those for whom the settlor desires to provide or for religious or charitable purpose. In other words, settlement among members of family in respect of the property jointly owned by them is a kind of compromise/mutual concession and arrangement between the members of family to settle their rights in respect of the member of the family.
58. This term "Compromise" has been defined in the Law Lexicon, the Encyclopedic Law Dictionary, 2nd Edition Reprint 2007 by P. Ramanatha Aiyar, page 373 as under:
Compromise. To adjust by mutual concession; to settle without resort to the law; to compound, (as noun) An "adjustment of matters in dispute by mutual concessions." "An agreement between the parties to a controversy for a settlement of the same." (Abbott.) "A settlement of differences by mutual concessions." "The mutual yielding of opposing claims; the surrender of some right or claimed right in consideration of a like surrender of some counter-claim." (Anderson Law Dict.) "An agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon." (Bou-vier.)
59. It can thus safely be said that a compromise is an agreement between two or more parties as a settlement of matters in dispute.
60. Privy Council in Trigge v. Lavallee, (1863) 15 PC 271 , while construing the term "compromise" held that it is an agreement to put an end to disputes and to terminate or avoid litigation. In such cases, consideration which each party receives is the settlement of the dispute; the real consideration is not the sacrifice of a right but the abandonment of a claim.
61. Subsequently in Rani Mewa Kunwar v. Rani Hulas Kunwar, (1874) 1 IA 157, the Court said that compromise is based on assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.
62. The above definition of "compromise" covers the cases wherein about the title of property, there may be a dispute but in respect to property whereof there was no doubt about the ownership of parties that it is vested in one or more of them, if it is brought within the scope of family arrangement, and is allotted to one of the other parties, it may result qua that property that there is a transfer of ownership. In this contest, in Khunni Lal v. Gobind Krishna,[1911] 33 All 356 , the Court said, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognising 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.
63. Following this, in Hiran Bibi v. Sohan Bibi, MANU/PR/0086/1914 : AIR 1914 PC 44, their Lordships said:
A compromise of this character is, in no sense of the word, an alienation by a limited owner of the family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties.
64. The question relating to "family arrangement" came to be considered by a Full Bench of this Court in Ramgopal v. Tulshi Ram and another,MANU/UP/0144/1928 : AIR 1928 All 641 and two questions considered therein were:
(1) Does the arrangement amount to a contract?(2) Was the matter "reduced to the form a document?
65. The Court observed that it has to determine, whether by a family arrangement dealing with immovable property, there is any transfer of ownership in certain property, for the ownership of certain other property. The Full Bench said that in the usual type of family arrangement in which there is no question of any property, the admitted title which vests in one of the parties, being transferred to one of the other parties, there is no transfer of ownership as such, is necessary to bring the transaction within the definition of "exchange" in Section 118 of Transfer of Property Act, 1882. The Court said that, therefore, that a binding family arrangement of this type may be made orally. Thereafter, the Court referring to Section 91 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1972") and 17 and 49 of Registration Act, 1908 held that a contract, if reduced in the form of a document, where the value of the subject-matter is Rs. 100 or upwards, its registration is compulsory.
66. The matter also came to be considered by a three Judge Bench in Kale and others v. Deputy Director of Consolidation and others,MANU/SC/0529/1976 : AIR 1976 SC 807, and Apex Court concretized certain propositions considering the effect and essentials of "family settlement" in para 10 of the judgment, and said:
(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 arrangements 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 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 prepared after the family arrangement had already been made either for the purpose of the record or for information 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 Section17(2) (sic) [Section 17(1)(b)] 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 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 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.
67. For maintaining peace and cordial relations amongst the members of family, the Courts have dealt with the cases of family arrangement with an objective to encourage mutual understanding and settlement amongst the members, whether by way of an oral agreement or written but so long it is successful for maintaining harmony amongst the members, Courts have attempted always to uphold such arrangements. A family arrangement is an agreement between the members of family intended to be generally and reasonably, for the benefit of family, either by compromising, doubtful or disputed rights or by preserving the family property or peace and security of family by avoiding litigation or by saving its honour. Arrangements are respected and acted upon by Courts. The Courts are reluctant to disturb arrangements mutually entered into by parties. For a family arrangement to be good and binding, it is not necessary that there should be a family dispute which had to be settled or compromised. The fact that by their agreement the parties have avoided the necessity or possibility of legal proceedings is sufficient consideration to support it. It is in this context Woodroffe and Ameer Ali in their Law of Evidence 13th Edition, Volume 3 at page 2896 have said:
Family arrangements--Estoppel by conduct may arise in the case of family arrangements, the decisions as to which extend not merely to cases in which arrangements are made between members of a family for the preservation of its peace but also to cases in which arrangements are made between them for the preservation of its property.....
68. The learned authors have further said:
Where family arrangements have been fairly entered into, without concealment or imposition on either side, with no suppression of what is true, or suggestion of what is false, then although the parties may have greatly misunderstood their situation, and mistaken their rights, a Court of Equity will not disturb the quiet, which is the consequence of that agreement; but when the transaction has been unfair, and founded upon falsehood and misrepresentation, a Court of equity would have a very great difficulty in permitting such a contract to bind the parties. When a family arrangement has been entered into, or acquiesced in by all the persons interested in the family property, and has been carried into effect, then none of the persons who consented thereto may thereafter be heard to repudiate that arrangement, or to set up that it is not binding in law. A family arrangement stands on a different footing from an ordinary contract. A settlement of doubtful claims, or rather what the parties believed to be doubtful claims without the worry and expense of litigation might itself be a sufficient "consideration" for such an arrangement. The fact that there was no other consideration to support the arrangement, or that it transferred the property to a person without any right, is not, therefore, a sufficient ground for setting aside a family arrangement.
69. In Law of Evidence by Sarkar 13th Edition page 1128 he has explained a family arrangement by observing that, "a family arrangement has been defined as an arrangement 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 litigating or by saving its honour."
70. In S. Shanmugam Pillai and others v. K. Shanmugam Pillai and others, MANU/SC/0398/1972: AIR 1972 SC 2069, the Court said:
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.
71. The above legal principles, if this Court applies to the facts of this case, I find that there was a settlement or family arrangement between the members of family in 1969 which has been proved by independent witnesses also and admitted by most of the members of family. The plaint assertions in this regard have not been contested or contradicted by appellants by filing any written statement. They have not adduced any evidence otherwise before Courts below. The plaintiffs have also proved that settlement/arrangement agreed between members of family in 1969 was given effect to and the parties also incurred stakes by raising construction etc. over property, that came to their share. This shows that settlement reached to the extent of division/partition by metes and bounds. The defendants-appellants have not stated or pleaded anywhere, since they have not filed any written statement, that these facts were not in their knowledge or having acquired the knowledge, they ever protested or raised their objection etc. to such arrangement. In fact, till the filing of suit and even thereafter, so far as defendants-appellants are concerned, they have not contradicted any statement of fact asserted and proved by plaintiffs through their pleadings and evidence before Courts below. The defendants who have actually contested the matter, have felt satisfied with the decree passed by Courts below and have not chosen to challenge the same.
72. In these facts and circumstances, I am inclined to answer question No. 3 by returning first part thereof in negative and second part in affirmative, i.e., in nutshell, against defendants-appellants.
73. So far as question No. 1 is concerned, though it has been argued that all the members of family were not present at the time when 1969 settlement took place but it is also true that the said settlement has not been disputed by any other member who allegedly was not present at the time, though whatever was settled between parties, was actually given effect to. There is no pleading on the part of any of the defendants or the alleged absentee(s) that he/they did not have the knowledge of said settlement and, therefore, could not raise any objection thereto. On the contrary, the settlement having been given effect to and in absence of evidence otherwise, to show that said implementation of settlement was not within the knowledge of other members of family, the alleged absentees by their conduct, having not raised any protest or objection, this is all the more reason to hold that they acquiesced and accepted the said settlement and now estopped to challenge the same, and that too, after the decision of T.C. at the instance of defendants-appellants who chose not to challenge the same even before T.C. by filing any written statement.
74. The question No. 1, therefore, is answered in affirmative by holding that even if some members of family were not present but if by their conduct or otherwise they have acquiesced to such family settlement, the same would be binding on all the members. In the result, the appeal fails. Dismissed with costs throughout.
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