1. These two appeals arise respectively from suits Nos. 244 of 1949 and 91 of 1949 on the file of the Civil Judge, Junior Division, Dharwar.
2. The lands in suit No. 244 of 1949 are B. S. No. 294/1A and B. S. No. 623/1. In the plaint they are valued at Bs. 4,000. The land in suit No. 91 of 1949 is survey No. 233/1 which is valued in the plaint at Rs. 3,500. These three lands together with other lands originally belonged to one Gurappa.
Gurappa had a son Fakirappa. Gurappa died first leaving him surviving Fakirappa & his widow Gangawa. Fakirappa died on February 5, 1930, leaving him surviving his widow Parvatewa, his daughter Shivagangawa and his mother Gangawa. Parvatewa died on 22-11-1942. Thereafter Gangawa adopted Shivamurteppa as a son to her deceased husband on 5-4-1943. Shivagangawa is the plaintiff in one of the suits, while Shivamurteppa is the defendant in both the suits.
3. On 3-4-1944, two documents were executed. One of them is a gift deed which is Exh. 64 in the case. It was executed by Shivamuvteppa who gave three lands to Shivagangawa. The other document is an agreement executed by plaintiff Shivagangawa and her husband in favour of Shivamurteppa. It will be necessary to refer to these two documents in some detail hereafter.
4. It appears that Shivagangawa sold survey No. 233/1 to one Gangappa on 23-4-1948, for Rs. 3,500.
5. On 22-3-1949, Gangappa filed suit No. 91 for possession of that land. Some time later, i.e., on 18-7-1949, Shivagangawa brought suit No. 244 against Shivamurteppa and one Bhimappa for possession of survey No. 294/1A and survey No. 623/1. Gangappa claimed recovery of possession on the ground that he was a purchaser of the land from Shivagangawa who was the owner of the land, and his contention was that the defendant Shivamurteppa was not the owner of the land because he was not the validly adopted son of Gurappa.
6. Shivagangawa brought suit No. 244 upon the allegation that she was entitled to succeed to the property after the death of her mother Parvatewa and that defendant Shivamurteppa was not the validly adopted son of Gurappa.
7. Both these suits were resisted by defendant Shivamurteppa, and his contention was two-fold. He contended, firstly, that as the adopted son of Gurappa he was the owner of the lands in both the suits, and, secondly, that he was the owner of the lands by virtue of an arrangement which took place on 3-4-1944, between himself and Shivagangawa.
8. The trial Court heard the two suits together and by a common judgment the trial Court decreed the plaintiff Gangappa's suit as well as plaintiff Shivagangawa's suit holding that the adoption of Shivamurteppa had not taken place, and that even if it had taken place, the adoption was invalid. In Gangappa's suit it was held that in view of the factum of adoption not being proved and in view of the invalidity of the adoption, Gangappa, as purchaser, was entitled to recover possession from Shivamurteppa.
From the decrees made in the suits Shivamurteppa filed appeals in the District Court, Dharwar, and the learned District Judge confirmed the decrees of the trial Court and dismissed defendant Shivamurteppa's appeals, holding that the adoption of Shivamurteppa was invalid, that there could be no family arrangement between persons, one of whom is a stranger to the family, and that in any event since the document evidencing the arrangement was not registered, the same was inadmissible in evidence. From the appellate decree made in each suit, defendant Shivamurtappa has filed separate appeals.
9. These two appeals were disposed of by a common judgment in the lower appellate Court as well as in the trial Court and it will be convenient to dispose of them also by a common judgment in this Court.
10. Two questions arise for decision in these appeals. The first question is whether the adoption of Shivamurteppa is valid. In the trial Court that court came to me conclusion that defendant Shivamurteppa had not proved the i'actum of adoption, in the lower appellate Court, however, the factum of adoption was, upon the evidence, held proved and that finding is not disputed in this second appeal.
Now the question about the validity of the adoption depends upon the question whether Gangawa had power to adopt. It is to be noted that Fakirappa died on 5-2-1930, leaving him surviving his own widow Parvatewa.
The rival contentions as put forward in this Court were these. Mr. Jahagirdar for the appellant contends that Gangawa had power to adopt Shivamurteppa as a son to her deceased husband after the aeath of Parvatewa. Mr. Murdeshwar, on the other hand, contends that since Fakirappa died leaving him surviving Parvatewa, his own widow, to continue the line, the power of Gangawa to adopt had come to an end and the power cannot suosequently be revived.
In support of the latter position, the lower appellate Court relied upon a decision of this Court reported in -- 'Shamrao Babaji v. Bhimrao AIR 1949 Bom 311 (A) and Mr. Jahagirdar conceded that in view of this decision he could not possibly contend that the adoption of Shivamurteppa was not invalid. But he contended that there were two other decisions of this Court which seem to be contraiy to the decision in 'Shamrao Babaji's case, (A)'. Those decisions are -- 'Anant Govind v. Dnyaneshwar Balkrishna : AIR1944Bom195 (B) and Pandurang Bhau v. Changunabai AIR 1945 Bom 164 (C).
In -- 'Anant Govind v. Dnyaneshwar Balkrishna (B)', the facts were these. A Hindu died leaving behind him his widow and two sons. One of the sons who was married but had no issue died next, and his wife died shortly afterwards. Then on the death of the other son who was unmarried, his mother adopted the plaintiff. The question which arose for decision was whether the plaintiff's adoption was valid, and it was held that the adoption was valid, because on the death of the second son without widow or issue his mother was the only person in the family who could continue the line by adoption. Mr. Jahagirdar says that if the mother could make a valid adoption, as in 'Anant Govind's case, (B)', there was no reason why in this case Gangawa could not make a valid adoption.
But it is obvious that there is a distinction between the two cases and the distinction is this. In 'Anant Govind's case, (B)' the last holder had died unmarried, i.e., without leaving his own widow or a son to continue the line. In the present case the last holder was Fakirappa and he died leaving him surviving his own widow to continue the line. It is for this reason that the plaintiff's adoption in 'Anant Govind's case, (B)' was held valid and Shivamurteppa's adoption in this case must be held to be invalid.
The other case is a case of 'Pandurang Bhau v. Changunabai, (C)'. In that case the facts were these. There were a Hindu father and his two sons. The father died leaving the two sons and their mother. The elder son died leaving a widow, and two days later the younger son died unmarried. The mother adopted the plaintiff and the widow of the elder son having disputed the adoption, the plaintiff sued for a declaration that his adoption was valid, and it was held that, as the younger son had died without leaving a widow or a son, the mother's power of adoption had not come to an end, and she could, therefore, validly adopt the plaintiff. This case is also distinguishable from the present case.
In 'Pandurang Bhau's case, (C)' although the widow of the elder son was alive, the last holder was the younger son and he had died unmarried, i.e., without leaving a widow or a son to continue the line. It was under those circumstances that it was held that the plaintiff's adoption was valid. In the present case Fakirappa had died leaving him surviving his own widow to continue the line and, therefore, defendant Shivamurteppa's adoption is invalid. Mr. Jahagirdar is not, therefore, right in contending that these two cases lay down a principle contrary to the principle laid down in -- 'Shamrao Babaji v. Bhimrao, (A)'.
11. It is to be noted that the case in -- 'Sham-rao Babaji v. Bhimrao, (A)', follows the full beach decision of this Court in -- 'Ramkrishna v. Sham-rao 26 Bom 523 (D) and what is worthy of note is that in the case of -- 'Amarendra Mansingh v. Sanatan Singh their Lordships of the Privy Council have approved of the full bencli decision in -- 'Ramkrishna v. Shamrao, (A)'. In view, therefore, of the decisions in --'Ramkrishna v. Shamrao, (A)', -- 'Amavendra Mansingh v. Sanatan Singh, (E)' and -- 'Shamrao Babaji v. Bhimrao, (A)' it is impossible to hold that defendant Shivamurteppa's adoption in this case was valid. That was the view taken by the lower appellate Court, and I think that view is right. In the result, therefore, defendant Shivamurteppa's adoption is invalid. The first contention, therefore, fails.
12. The next question is whether there was, on April 3, 1944, a family arrangement between Shivagangawa and Shivamurteppa and whether that family arrangement is binding upon plaintiff Shiva-gangawa.
Now, the family arrangement is evidenced by two documents of the same date. Ag already observed, one of them is a deed of gift executed by Shivamurteppa in favour of Shivagangawa. The other document is an agreement executed by Shivagangawa and her husband in favour of Shivamurteppa.
In considering the validity of this family arrangement, it will be necessary to refer to the two documents in greater detail. The gift deed, 'inter alia', states as follows :
'You are the grand-daughter of my adoptive father, that is to say, you are my niece. You have been given in marriage at Murengudi in Ron taluka. But as your husband's people are very poor and as you are experiencing great hardships in the matter of your livelihood, I have been housing you and your husband in my house and I have been maintaining and looking after you. As your conduct has appealed to me and as you have been given in marriage into a poor family, I have thought of gifting the below mentioned properties to you, and I have given the below mentioned properties to you as a gift.'
Then the gift deed mentions the three lands which are survey Nos. 233/2, 568/2 and a portion of survey No. 623. The deed of gift concludes as follows :
'The above-mentioned properties of the description given above have been gifted to you and have been given into your possession. Prom today neither I nor my heirs, nor my executors have any right or title whatsoever to the properties which have been gifted to you or to the deposits, quarry, water, trees, stones, etc., in the said lands. You are the full owner and you have full rights and you should go on enjoying and making vahivat of the same from generation to generation as you like. The properties mentioned above and gifted to you are 'Nattu' and 'Kadare' and their present proper value is Rs. 2,500.'
It is to be noted that the deed of gift is attested by two witnesses, of whom Gangappa is one and Gangappa is the plaintiff in suit No. 91. The more important document is the agreement and as the recitals of this document are important, it will be necessary to stale the material recitals in some detail. The agreement begins by reciting as follows :
'You are the uncle of No. 1 of us, that is to say, you are the adopted son of my (No. 1's) full (Khas) grandfather Gurappa. The properties belonging to my grandfather are as shown below. As some disinterested persons have advised us that there should not arise any disputes amongst us and the property should not be wasted unnecessarily, we have willingly agreed to the same and we have executed this Kararpatra in your favour.'
Then the agreement refers to the three lands given to Shivagangawa by way of gift and the agreement goes on to state:
'The lands which have thus come to us have been taken by us into our possession willingly. The remaining property is in your possession alone in your capacity as the owner by reason of adoption as you have been adopted as a son to my grandfather i.e., Gurappa. Neither of us has any dispute nor contention whatsoever against the said adoption. We consent to the said adoption. Out of us No. 1 herein before mentioned had applied for my (her) name being entered in respect of all the properties of the Alagwadi village standing in the name of the adopted son in the Record of Rights; the same is cancelled. As you are the adopted son of my grandfather Gurappa and as we desire that the line of our grandfather should continue, we give consent to the said adoption. We have no dispute whatsoever with respect to the properties which are in your possession.'
It is to be noted again that the agreement is attested by the self-same two persons of whom Gangappa is one and Gangappa is the plaintiff in suit No. 91.
12. Now, it would appear that there was a dispute between plaintiff Shivagangawa & defendant Shivamurteppa, concerning the ownership of the property which originally belonged to Gurappa. That there was such a dispute will be clear from the fact that Shivagangawa had applied to the revenue authorities to have her name entered in respect of all the properties standing in the name of the adopted son in the record of rights.
In view of this dispute it is also clear that some disinterested persons had advised the parties that there should not arise any dispute amongst the two and that the property should not be wasted unnecessarily, and it was for that reason that the two parties agreed to a certain arrangement & that arrangement was evidenced by the 'kararpatra' executed by Shivagangawa and her husband in favour of defendant Shivamurteppa.
13. Now, as to what happened Immediately after the death of Parvatewa, the mother of plaintiff Shivagangawa, will be clear from the entries made in the record of rights. Exhibit 4 which is an extract of the record of rights shows with respect to survey No. 294/1A that the original holder or Kabjedar was Parvatewa 'kom' Fakirappa.
After the death of Parvatewa, it appears that the name of Shivagangawa was mentioned in the record of rights and it would appear that the name of defendant Shivamurteppa was thereafter mentioned in the record of rights. Similar remarks apply in the case of survey No. 623, 'hissa' No. 1, and that will be clear from extract Exh. 5.
It appears from the extract, Exh. 6, that after the death of Fakirappa there was an heirship inquiry and as a result of the heirship inquiry the name of his wife Parvatewa was entered in the record of rights. It would also appear from the extract, Exh. 6, that survey No. 233/1 and survey No. 568/2 were given to Gangawa for her maintenance by Parvatewa 'kom' Fakirappa.
It appears from the same document that Gangawa gave a 'vardi' that her ancestral properties were in the name of her daughter-in-law Parvatewa 'kom' Fakirappa Ganiger and that Parvatewa died on November 22, 1942, without leaving any male issue and that, therefore, she was the heir to all those properties, and it appears that Gangawa's name was entered in the record of rights.
After the adoption of defendant Shivamurteppa the three lands in suit, survey Nos. 233/1, 623/1 and 294/1A, were given in actual possession of the adopted son, and it will be clear by reference to the same document that after the death of Parvatewa the name of plaintiff Shivagangawa was entered as per 'vardi'. So that it would be seen from these documents that with respect to the suit lands the name of Shivamurteppa had been entered in the record of rights and that plaintiff Shivagangawa had made an application to have her name entered in the record of rights as mentioned in the agreement, Exh. 71. It was this dispute between plaintiff Shivagangawa and defendant Shivamurteppa that was resolved by the arrangement evidenced by the gift deed and by the agreement.
14. Now, the contention of Mr. Jahagirdar is that the arrangement evidenced by the gift deed and by the agreement is a family arrangement and this family arrangement in binding upon the plaintiff Shivagangawa who was a party to the arrangement. Mr. Jahagirdar says that in the year 1944 there was a dispute between plaintiff Shivagangawa and defendant Shivamurteppa regarding the family property and this dispute was resolved by the execution of the deed of gift and by the execution of the agreement.
Mr. Murdeshwar who appears for plaintiff Shivagangawa contends that there can be no family arrangement between a member of a family and a stranger to the family. He says that in view of the finding that the adoption of Shivamurteppa is invalid, Shivamurteppa is a stranger to the family of Gurappa. There can, therefore, be no family arrangement in law between plaintiff Shiva-gagawa and defendant Shivamurteppa.
Mr. Jahagirdar, on the other hand, contends that there can be a family arrangement between a member of a family and a person who is a stranger to the family, and in this connection he relies upon Gour's Hindu Code, 4th Edn., p. 571, Section 173. It is as follows:
'A family arrangement is the 'bona fide' settlement of a claim or dispute by members of a family, made or acquiesced in, for the benefit, peace or security of the family generally or for preserving its property or honour. Explanation 1. The term 'family,' as used in this connection, is a wide one and includes not only the members of the family, male and female, legitimate and illegitimate, natural and adopted, or to be adopted for the time being; but also those, yet unborn, including reversioners, and all persons having some claim on the family for maintenance, residence, marriage portion or the like.
Explanation 2.--It is not essential to a family arrangement that its benefit should be limited to the members of a family, since a stranger may equally benefit by it.'
Mr. Jahagirdar relies in this connection upon a decision of this Court reported in the case of --'Kashibai v. Tatya : AIR1916Bom312 (F). It is to be noted, however, that in the case of--'Kashibai v. Tatya (F)' there was no question of the adoption being invalid. That is not, therefore, precisely a case where the arrangement was between the members of a family and a stranger to the family.
Mr. Jahagirdar next relies upon the case of --'Ramgouda Annagouda v. Bhausaheb and he says that it is not necessary for the validity of a family arrangement that the persons who are parties to the arrangement must be members of the same family.
It is to be remembered that the expression 'family arrangement' is not to be found in the judgment of their Lordships of the Privy Council. That expression is to be found in the arguments of Sir George Lowdies as reported at page 398 (of 54 Ind App). That was a case where a widow had alienated her husband's property by three documents executed and registered on the same day. By one document she gave a part of the property to her brother; by another document she sold half of another property to A, and by a third document she sold the other half of the property to her son-in-law. The signature of each of the deeds was attested by the two other alienees.
A, who survived the widow, did not seek to set aside any of the alienations. After his death his son and grandsons brought a suit to recover the whole property and it was held that the three deeds were to be regarded as forming one transaction entered into by all the persons interested in the properties and that the arrangement was binding upon the heirs of A who was one of the alienees. This case, no doubt, goes to show that it is not necessary for a family arrangement that the persons entering into the arrangement must be members of the same family.
But Mr. Justice Baker has taken the view in the case of -- 'Lallu Prasad v. Babu Lal AIR 1924 Nag 214(H) that where the defendant is a perfect stranger to the family, he cannot be in possession of the family property under a family arrangement, that a family arrangement pre-supposes a claim by some member of the family to part of the family property, which is settled by an arrangement between the members of the family recognising the claimant's real or supposed rights and that there can be no question about this in a case where a stranger is in possession of part of the family property. Mr. Murdeshwar for the plaintiff strongly relies upon this case.
15. It would seem, however, that there can be a family arrangement between the members of a family and a stranger to the family. This will be clear by reference to a case decided by their Lordships of the Privy Council in -- 'Ramkishore Kedarnath v. Jainarayan Ramrachhpal', 40 Ind App 213 (I). In that case one of the parties to the arrangement was a person whose adoption was invalid. A partition was effected between that person and the members of the family, but since the adoption was invalid, he could have no interest in the family property.
With reference to this decision this is what their Lordships of the Privy Council said (p. 221) : 'The basis of the suit is that the adoption of Jainarayan was wholly invalid, in which case he was in the view of the law an absolute stranger. It is not disputed that the validity of an adoption may be contested by persons prejudicially affected by it. And it seems to their Lordships to be clear that, although a partition made by a Hindu father may under some circumstances bind his minor sons, as was held by this Board in -- 'Balkishen Das v. Bam Narain Shau 30 Ind App 139 (J) yet if on the partition as hare is given to an absolute stranger the partition may be impeached as a disposition of property made without consideration, unless it can be supported as a bona fide compromise of a disputed claim. There are no materials before the Board to enable them to form a conclusion in favour of the first respondent on this ground, as suggested by the learned Additional Judicial Commissioner, even if such a case had been set up by him.'
This goes to suggest that there can be a family arrangement when there is a bona fide compromise of a disputed claim and that compromise may be between members of a family and a person who happens to be a total stranger to the family by reason of his adoption having been found to be invalid.
Similar would seem to be the position as is clear from the full bench case of -- 'Ram Gopal v. Tulshi Bam : AIR1928All641 . In that case also there was an arrangement between certain members of a family and a person who had no interest in the property because of the factum of adoption not having been established. In that case the question was whether the transaction could amount to a family arrangement, and the learned Judges of the Allahabad High Court held that there could be a family arrangement in such a case. I shall have occasion to refer to this case in another connection hereafter.
The position in this case appears to me, therefore, to be this. Defendant Shivamurteppa was adopted in the year 1943. In view of the law which prevailed then and which prevails today the adoption of Shivamurteppa is invalid. As his adoption is invalid, Shivamurteppa is a stranger to the family of Gurappa. But he claimed to be a member of the family because he contended that his adoption was valid. This was disputed by plaintiff Shivagangawa & the dispute took the form of an application made by plaintiff Shivagangawa to the revenue authorities to have her name entered in the record of rights in place of Shivamurteppa. That there was such a dispute will be dear from the oral evidence in the case.
16. In the first place, there is the evidence of defendant Shivamurteppa. His evidence shows that after his adoption the dispute arose between him and plaintiff Shivagangawa and that the dispute took place about a year after the adoption. The evidence shows that there were criminal proceedings and the dispute was compromised by Bhimappa and Gangappa.
According to the evidence of defendant No. 1, that was done in the house of one Settappa Bagalkoti. Then defendant No. 1 mentions the persons who were present at the time of this compromise and he says that it was agreed that Shivagangawa was to be given three lands measuring 30 acres, that she was to pass an agreement admitting the adoption of Shivamurteppa and the ownership of the property in the adopted son and that she was to withdraw the 'vardi' given by her to the village officers.
He also says that it was agreed that defendant. No. 1 should pass a gift deed in respect of the three lands to Shivagangawa. According to defendant No. 1, the gift deed and the agreement were passed as the result of the compromise and Shivagangawa was put in possession of the property-gifted to her in accordance with the deed of gift. According to defendant No. 1 Yellappa Madimani was a witness regarding the compromise and Yel-Sappa has been examined in this case and his evidence shows that there was a compromise effected in the house of Settappa Bagalkoti.
The plaintiff has given evidence in this case and she has denied that there was any such compromise in the house of Settappa Bagalkoti in Navalgund. She says that her husband did not tell her that a compromise had been effected. She also stated that it was not true that she gave an application to the Magistrate, First Class, Navalgund, and that it was not also true that her statement was recorded in the Magistrate's Court, and she went on to say that she never made such a statement. Now, it is to be noted that Shivagangawa had made two statements which she has now denied. One of them is at Exh. 57. That is a written statement which she had filed in the Court of the Magistrate, First Class, Taluka Navalgund.
The dispute before the criminal Court was concerning survey No. 623-1 and survey No. 294-1A. and in the written statement this is what she-has stated :
'After the adoption Shivamurteppa, the adoptive son of Gangawa has gifted me some fields which formed part of property (which came to-him by reason) of the said adoption. The lands are at present in my possession and I too have admitted the adoption of the said Shivamurteppa.'
Then the other statement is at Exh. 58 and a reference to the statement shows that Shivagangawa stated that Shivamurteppa had been adopted by her grand-mother, that the lands were the lands of her grand-mother and that Shivamurteppa himself had been making 'vahivat' of the lands as the adopted son. It is to be noted that the statement, Exh. 57, is dated 8-3-1948, while the statement, Exh. 58, is dated 14-4-1948.
17. There is no doubt, therefore, that there was in the year 1944 a dispute between plaintiff Shivagangawa on the one hand and defendant Shivamurteppa on the other, that this dispute was settled at the intervention of third parties and that, as the result of the compromise of the dispute-the two documents, viz., the gift deed and the agreement came to be executed on 3-4-1944. The question for decision, therefore, is whether the two documents, viz., the gift deed and the agreement, constitute a family arrangement, and if it is a family arrangement, whether the family arrangement is binding on the plaintiff.
Mr. Jahagirdar for the appellant has referred' to a decision of the Calcutta High Court in the case of -- 'Sashikantha v. Promode Chandra Roy : AIR1932Cal600 of the report this is what is stated:
'....On the question whether the document was valid, regarded as a deed of family settlement, we have been referred to such cases as -- 'Williams v. Williams (1866) 2 Ch A 294 (M), --'Helan Dasi v. Durga Das Mundal 4 Cal LJ 323' (N) Satya Kumar Banerjee v. Satya Kripal Banerjee', 10 Cal LJ 503 (O); -- Upendra Nath v. Bindesri Prasad AIR 1916 Cal 843 (P), for the proposition that a family arrangement might be upheld, although there were no rights actually in dispute at the time when it was made, that it is a mistake to suppose that the principle is applicable only to arrangements for the settlement of doubtful or disputed rights, but it also extends to arrangements made amongst members of a family for the preservation of its peace, and that where no fraud, mistake, inequality of position, undue influence or coercion or ground of a similar nature has been established, courts would not be bound to scan with much nicety the 'quantum' of consideration,'
Then the learned Judges say at p. 612 of the report that:
'... .On reading these decisions with care, it seems to us that, if there is one principle that follows from all of them unmistakably, it is this that the arrangement must be one concluded with the object of settling 'bona fide' a dispute arising out of conflicting claims to property, which was either existing at the time or was likely to arise in future. 'Bona fides' is the essence of its validity & from this it follows that there must be either a dispute or at last an apprehension of a dispute, a situation of contest, which is avoided by a policy of giving & taking; or else, all transfers or surrenders will pass under the cloak of a family arrangement.'
These being the principles, it seems to me that in this case there was a dispute between plaintiff Shivagangsiwa and defendant Shivamurteppa regarding the ownership of the family property. While plaintiff Shivagangawa claimed the property as the daughter of the last holder Fakirappa, defendant Shivamurteppa claimed the property on the ground that as the adopted son he was entitled to the family property. It is true that the adoption of Shivamurteppa was invalid, but he claimed to be the adopted son and, therefore claimed to be a member of the family of Gurappa.
In my opinion, therefore, it is not necessary to constitute a valid family arrangement that every person who takes part in the arrangement must necessarily be a member of the family. The person concerned may claim to be a member of the family, and if the dispute was resolved by the intervention of third parties and there was a bona fide settlement of a disputed right or disputed claim, I do not see why there should not be a family arrangement between a member of the family and a stranger merely because one of the parties to the arrangement happens to be a stranger by reason of his adoption having subsequently been held to be invalid. In my opinion, therefore, the deed of gift and the agreement constitute a family arrangement between plaintiff Shivagangawa on ithe one hand and defendant Shivamurteppa on the other & that these two documents can fairly be 'regarded as a valid family arrangement between the two parties.
18. The next question is whether defendant Shivamurteppa can rely upon this family arrangement in answer to the plaintiff's claim. Now, admittedly, the agreement of 3-4-1944, is not a registered agreement and the question is whether by reason, of the agreement not being registered, defendant Shivamurteppa will be entitled to rely upon the agreement.
In two places this is what the agreement says:
'The remaining property is in your possession alone in your capacity as the owner by reason of adoption as you have been adopted as a son to my grandfather i.e. Gurappa.'
Then the agreement says:
'We have no dispute whatsoever with respect to the properties wnich are in your possession.'
Now, if the adoption of defendant Shivamurteppa is valid, then there is no question that he has a valid title to the property. But his adoption is invalid and defendant Shivamurteppa would have no claim or title to the property, apart from the agreement, exh. 71. In my opinion, this agreement declares the title of defendant Shivamurteppa to the properties which were left in his possession and, therefore, Section 17(b), Registration Act would be attracted. This is a non-testamentary instrument which purports to declare the right, title or interest of defendant Shivamurteppa to the properties in his possession and by reason of Section 49 the agreement would be inadmissible in evidence, Therefore, defendant Shivamurteppa cannot successfully rely upon the agreement, exh. 71, for the purpose of showing, in answer to the plaintiff's claim, that he has a right to remain in possession of the properties under the agreement, exh. 71.
It is true that in some cases a view has been taken that a family arrangement does not require registration. But I think those cases are cases where the parties to the arrangement have an antecedent title to the property, in a family arrangement one has to ask oneself two questions: (1) Is the arrangement between the members of the same family?, and I have already said that one can conceive of a family arrangement even between a member of a family and a stranger to the family, and (2) whether the arrangement is a valid arrangement, there being some antecedent title to the property, and in this case in view of the adoption of defendant Shivamurteppa having been held to be invalid, he had no title to the property.
If, therefore, defendant Shivamurteppa had no title to the property, it is obvious that his title to the property was declared by the agreement, exh. 71, and since the agreement is not registered, he cannot rely upon the agreement in support of his contention that he has a right to remain in possession by virtue of this agreement. It is not even the case of defendant No. 1 that there was any such agreement entered into between the parties and that there was any arrangement prior to 3-4-1944.
Mr. Jahagirdar contended that the agreement, exh. 71, does not require registration because defendant No. 1 had claimed title to the property already by virtue of his adoption. That, in a sense, is true.
But it is to be remembered that the adoption of defendant Shivamurteppa is invalid and he would have, therefore, no title to the property prior to the agreement of 3-4-1944. Defendant No. 1 would have no antecedent title to the property. His title was for the first time created under the agreement, exh. 71, and since the agreement is not registered, defendant No. 1 cannot rely upon the agreement in repelling the plaintiff's claim. In support of this position reference may be made to the full bench decision of the Allahabad High Court in --'Ram Gopal v. Tulsi Ram : AIR1928All641 of the report this is what the Full Bench stated :
'If the terms were 'reduced to the form of a document' and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the documents inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.'
This will also be clear by Mulla's Registration Act, 5th Edn., p. 61. There the Allahabad case has been explained in the form of propositions, the third proposition being
'If such arrangement was in fact 'reduced to the form of a document' for the purpose of recording the arrangement, registration (when the value is Rs. 100 or upwards) is necessary by section 17 of the Registration Act, and the absence of registration makes the document inadmissible in evidence, under section 49 of the Registration Act, in proof of the arrangement, and under section 91 of the Evidence Act no other proof thereof can be given.'
In my opinion, therefore, although the deed of gift and the agreement constitute a family arrangement, the agreement which evidences the family arrangement is not admissible in evidence and, therefore, defendant Shivamurteppa cannot successfully rely upon the arrangement in answer to the plaintiff's claim. It is clear that in view of the invalid adoption of defendant Shivamurteppa, Shivagangawa would be entitled to inherit the property of her father and defendant Shivamurteppa would have no title to the property. If Shivamurteppa has no title to the property since the agreement, Exh. 71, is an unregistered document and is inadmissible in evidence, defendant No. 1 cannot possibly resist the plaintiff's suit.
19. In my opinion, therefore, the appellate decision in each case is right. S. A. No. 1191 of 1951,therefore, fails and the same will be dismissed withcosts, and for the same reasons S. A. No. 1192 of1951 also fails and that too will be dismissed withcosts.
20. Appeal dismissed.