1. This appeal arises out of a suit brought in forma pauperis for partition of A, B and D schedule properties into four equal shares and possession of one such share in A and B schedule properties only, or in the alternative, for specific performance of an agreement to convey C schedule property and delivery of its possession with past mesne profits.
2. The plaintiff and defendant do not belong to the same family. Whereas the former is a member of Anchuru family, the latter belongs to Gurujala family. The following geneological table would bring out the mutual relationship between the parties:
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Kondappanaidu Raghavulu Pichamma
(died about 1908) Naidu =Gurijala Venkamma
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Chinasubba Veerappanaidu Kanakamma
Naidu (Piff.) =Gurijala
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Narasappa Peramma Subbamu
Naidu =Kondappa =Raghavt
=Kanakamma Naidu Naidu
According to the plaintiff, both these families had migrated simultaneously to Indukurpet towards the close of the last century and in pursuance of an engagement between the ancestors of the parties, have been living together as members of a Hindu composite family for several generations owning and enjoying properties in common with equal rights. The ties between the two families were cemented by the marriage alliance as well. According to the time honoured practice, the most capable member of one of the two families used to be the manager of the composite family and the two other members used to work under his directions making their contribution to the general well being of the family and development of its resources.
Narasappanaidu, the father of the defendant was in management of the composite family properties till he died on 16-4-1952. Whatever he had acquired was on behalf of and for the benefit of the composite family and the plaintiff and his brother had an undivided half share therein. The plaintiff's brother, however after his marriage began to live in his mother-in-law's house. In the year 1944, he declared his intention to become divided and made a demand of his share.
On denial, he sought to enforce his claim through a suit O.S. No 12 of 1944 on the file of the District Court, Nellore which was transferred and numbered as O.S. No. 70 of 1945 on the file of the Sub Court, Nellore. The suit ultimately ended jn a compromise and under the terms of the compromise, Ex. B-45, dated 6-12-1946, he (China Subbanaidu) got some valuable property. It was not stated in the compromise that there was a composite family or the plaintiff's brother got this property in lieu of his share as a member of such family.
Erelong in 1947, the plaintiff also was given some property of almost the same extent. It was shown in his case to have been given by way of gift. An agreement dated 10-7-1947 in evidence thereof was executed by the defendant and his father and the plaintiff was put in possession on the same day of Ac. 3-00 of wet land in Bullavari Khandriga, Ac. 1-50 of wet land in Indukurpet and Ac. 12-50 cents in Vulavapalli, hamlet ot Thimmayyapalem shrotriam. The last mentioned item of property was in actual possession of tenants paying makta every year.
Constructive possession therefore was given of these lands to the plaintiff. A separate formal document was agreed to be executed and registered within 10 days but for some reason or other that could not be done. Sometime thereafter the tenants at Vulavapalli set up rights of occupancy in the lands against Narasappanaidu and in the litigation that ensued they emerged out successful as against him in the trial court. The plaintiff did not take steps to resist their claim.
His case is that in view of their dispute he requested Narasappanaidu to give some other properties instead and that both Narasappanaidu and defendant agreed to give some lands at Indukurpet and execute a proper document therefor. Accordingly, on 0-1-1952 when Narasappanaidu came to Nellore where the plaintiff was staying, he Executed an agreement of conveyance of the properties set out in schedule 'C', in his capacity as manager of the family consisting of himself, his sons and grand-sons.
The defendant was then at Madanapalli. He was informed of this only when he came to Indukurpet about 15 days prior to 10-4-1952- He expressed his assent to what Narasappanaidu had done. But before the promised document could be executed and registered and possession given, Narasappanaidu died on 16-4-1952. Plaintiff's story is that he made a request in this behalf to the defendant but it fell on deaf ears. This led to the present action.
3. The defendant does not admit that the families of the parties migrated to Indukurpet simultaneously. According to him, his family migrated in about the year 1890 when Kondappa-naidu and Raghavulunaidu with their meagre resources were still living in Obulayapalli. In 1892 these brothers mortgaged whatever they had and sometime thereafter migrated to Indukurpet where they set up a separate residence. The families of the parties did not live together.
After the death of Kondappanaidii, however the plaintiff and his brother with their mother came to reside in defendant's house as they had no means of livelihood. At no time did they or their ancestors constitute a composite family. The plaintiff's brother had no doubt brought a suit but his claim that there was a composite family was not admitted and whatever was given to him under the compromise was in settlement of disputed claim and not in satisfaction of any admitted claim.
The plaintiff also was given thereafter about the same extent of property in 1947 under Ex. A-11, d/- 10-7-1947 and was put in possession thereof. Thereafter he leased out some of the lands under registered deed dated 24-4-1949 and collected the makta of the other lands. These lands were in fact accepted by him in full quit of his claim whatever that may be, whether arising from his services rendered or otherwise. No further agreement as alleged was entered into or a deed executed later on by Narasappanidu.
Nor was there any occasion for that either. The agreement dated 6-1-1952 is a forgery and a fraud. The plaintiff in preparing this document either made use of a blank paper with the signature of Narasappanaidu which was intended for use in connection with O. S. No 70/1945 or forged the signature as well. In any event the document is not binding on the defendant and the suit for specific performance, founded thereon is not tenable in law nor is the suit for partition of the property based otherwise maintainable when admittedly the plaintiff got to his satisfaction lands in full quit of all the claims that he could set up.
4. The trial court raised eight issues and after enquiry dismissed the suit on the ground that neither the constitution of the composite family has been established nor is it proved that the agreement dated 6-1-1952 is true and binding on the defendant. The learned Subordinate Judge also held that the letter dated 10-7-1947 which was acted upon by the plaintiff must afford a complete answer to any claim for partition of the suit property. The above findings, one and all, have been canvassed by the learned counsel for tlie appellant.
5. A preliminary ground was raised, by the learned counsel for the remand of the case on the basis that the trial court had refused to admit certain documents which were clearly admissible in law by reason of Section 33 of the Evidence Act. This ground however after some discussion was abandoned when the learned counsel after perusal of the documents realised that this evidence would in no way improve the situation created by the evidence already on record.
It was argued, however, though feebly, that the evidence already on record was sufficient to establish that the families of the parties had all the attributes of a composite family to confer on their votaries equal rights in the property possessed by them. What we call a composite family seems to be unknown to the original texts of Hindu Law. This institution is essentially a creature of custom prevalent in certain families, in some parts of the country, but must owe its constitution to an agreement, whether express or implied.
Where two or more families agree to live and work together, pool their resources, throw their gains and labour into the joint stock shoulder the common risk, utilise the resources of the units indiscriminately for the purpose of the whole family, such a case may be within the ambit of composite family, provided there is a custom of such merger known to those families. A composite family is indeed constituted with some purpose. Evidently it has for its objects the convenient and efficient management at family properties by corporate effort.
Spirit of co-operation and mutual help is a dominant factor in the constitution of such families. The families usually knit together by strong ties of marriage feel impelled to pool together their joint resources and merge themselves into a single unit under some engagement. There are also cases where rich husbands take into their families the brothers of their poor wives along with their family properties and entrust them with the management of their house-hold duties and cultivation.
These instances are merely illustrative. As a matter of course, there can be several other considerations which may bring two or more families together blending them into one composite whole reinforcing them further by strong ties of matrimonial relations. The requirements of a composite family indeed are varied They are not satisfied if there is no custom known to the family. It will be fatal for the institution if its origin is not traced- to any engagement express or implied.
The blending should be so far complete as to make it appear, in all its ventures and undertakings, a complete unified whole. The resources of the units must be available for the purpose of the whole family without any discrimination and each member thereof must be in a position to act for the other member. And all this, as already said, must be a necessary consequence of the original agreement between the parties. The agreement may be express or implied but it must be between the families to pool together their labour, skill and resources and work for the common weal.
The extent of their share in the family business will depend upon the terms of the agreement and unless it is agreed to the contrary the shares of the families will ordinarily be equal. If such an agreement is to be inferred from the circumstances, the circumstances must be such as to lead to that inevitable conclusion. Being a creature of custom having its origin in agreement, it admits of no doubt that the evidence to be adduced in support thereof must be clear and convincing.
In the present case obviously, there is no direct proof of any agreement. The span of human life is short and its memory fallible. Unless the agreement is reduced to writing, it nay not be possible to get direct evidence after several generations with regard to the contract that might have taken place between the ancestors of the parties. The matter therefore must largely depend upon the circumstantial evidence.
In that case the circumstances relied on must not only he proved but should be capable of being explained only on the reasonable hypothesis of existence of such an engagement. But unfortunately, except that the plaintiff had been helping in the cultivation of the family, which circumstance by itself is not sufficient to raise such presumption, all the other circumstances brought to light go against the plaintiff's theory.
6-8. (His Lordship reviewed the evidence and proceeded).
9. Before we consider the question on merits, we have to dispose of some preliminary grounds raised during the course of arguments as to the maintainability of the suit on the basis of such a document. It may be seen that Ex. A-12 though named as a deed of agreement, has all the essentials of a completed contract, having regard to its recitals. The terms embodied therein would show that the executant had given to the plaintiff the properties described in the document, and put him in possession thereof on the same day with absolute powers of disposition in relation thereto. All that was left further to be clone was the execution of a formal registered deed which was to be executed on plaintiff's demand, failing which the plaintiff was at liberty to proceed against Narasappanaidu or his heirs.
Narasappanaidu according to the plaintiff died on 16-4-1952, but according to the defendant whose testimony stands unrebutted, he died on 16-5-1952. Evidently there was a clear period of about four months wherein he could make a demand from Narasappanaidu for the registration of a formal deed and apply to the registering authority for due registration of the deed. Plaintiff did not resort to this remedy. Instead, he brought a suit about a year later for specific performance and that only as an alternative claim to a suit for partition of the composite family property. He brought this suit on 6-2-1953.
10. It is strenuously contended that failure to apply for registration under the provisions of the Registration Act is fatal to the suit and that at any rate the document purporting to he a completed contract and as such requiring registration cannot be admissible in evidence. On both these points, there seems to have been conflict of judicial decisions. A Full Bench case of this Court however in a recent decision in Satyanaraysna Murthy v. Gangamma, : AIR1959AP626 on a review of various authorities on the subject held that Section 77 of the Registration Act does not contain an exclusive remedy to a person who seeks to enforce his rights flowing from a contract of sale.
It was further held that it does not bar a suit for specific performance of an agreement to sell though, of course, being an equitable remedy, the court is not bound to grant a decree in every case in which the agreement was not carried out in its entirety. The question no doubt in that case turned upon a will which in law does not require registration. Section 77 of the Registration Act evidently has no application to instruments which are not testamentary and not within the ambit of Section 17 of the Registration Act.
But the argument in that case extended even to the documents requiring registration and consequently the proposition laid down therein was broad based and the decision covered instruments inter vivos which Fell within the ambit of Section, 17 of the Registration Act. The decision on this point may strictly be an obiter dictum, but with respect, we feel ourselves in complete agreement with the reasoning given for the conclusion reached on this point. We do not therefore think it necessary to review once again the various authorities on that subject.
Suffice it to say that when there are two alternative remedies available to a party, it is open I to him to exercise his right of election. If he seeks to bring a suit under Section 77 of the Registration Act only for the registration of the document, the suit must necessarily be brought within 30 days when the Registrar refused to register the document. But if he seeks to have recourse to a full and more comprehensive remedy, it is open to him to resort to a suit for specific performance.
As a suit under Section 77 has to be confined to the registration of a document alone, the question of validity and delivery of possession of property, cannot but be conclusively adjudicated upon in a suit for specific performance only. That being the case, the suit for specific performance cannot be barred merely because the aggrieved party did not choose to bring a suit under Section 77 of the Registration Act.
A provision which cannot afford him full and complete relief which he can claim in law, cannot possibly stand in his way in having resort to an effective remedy open to him. That must be so even though a party has not taken prior proceedings under the Registration Act for sufficient grounds. The remedy for specific performance of course being an equitable remedy, the court may, if the party is guilty of laches or gross negligence, refuse to exercise the discretion in his favour. No doubt the present suit has been instituted without any previous resort to proceedings under the Registration Act.
NO previous effortwas made for the registration of the document- But the contention of the plaintiff has been that the executant had died on 16-4-1952 itself before the expiry of the period of registration. There is of course no convincing proof of the exact date of death. However, it Is plain the executant being dead, resort to a proceeding under the Registration Act would not have yielded effective results. It may further be noticed that the plaintiff claims possession of the property as well. In these circumstances, the remedy adopted as the only suitable remedy cannot be open to question.
11. The other point raised is that since the document on its very recitals is a complete document of conveyance falling within the ambit of Section 17 of the Registration Act, it cannot be used in evidence of the transaction affecting immovable property and the action of specific performance also cannot be founded thereon. But proviso to Section 49 says that even such an unregistered document may be received as evidence of a contract in a suit for specific performance.
This provisohas beenintroducedby the 'TransferofProperty(Amendment)Supplementary Act 1929 as a result of the decision of the Privy Council in James Skinner v. R. H. Skinner. 57 Mad LJ 765: (AIR 1929 PC 269). Prior to this amendment, the judicial opinion in this behalf has not been uniform. In Surendra Nath Nag Chowdhury v. Gopal Chunder Ghosh, 12 Cal LJ 464 a Division Bench of the Calcutta High Court observed thus:
'Although a document, which has been executed, is inoperative in law and wholly ineffectual to create title in the intended lessee, it is nevertheless evidence of a valid agreement to execute a lease and may consequently form the foundation of an action for specific performance.'
This view is in consonance with the proviso introduced later on to Section 49 referred to above. In Satyanarayana v. Venkata Rao, ILR 49 Mad 302 (at p. 309) : (AIR 1926 Mad 530 (at pp. 531-32)) a case decided in 1925, the Chief Justice who delivered the opinion of the Court, while referring to the above decision, observed thus:
'I should have thought it a very vicious method of construction to say that a document, which purports to be one thing, is to be allowed to be treated when it is found imperfectly to contain what it purports to be as a valid document of a different order altogether. The reasoning of the learned Judges of the Calcutta High Court appears to be this.'
In Venkadari Somappa v. Official Receiver, Bellary, 1938-2 Mad LJ 362 : (AIR 1938 Mad 801) which is a case decided after the amendment, the-learned Judges observed at p. 365 (of Mad LJ); (at p. 802 of AIR) thus:
'It is well-settled law in this Presidency that an unregistered document of transfer is not of itself sufficient to support a suit for specific performance of an agreement to transfer. If an instrument is executed in my favour, which is, in terms, and is intended to be, a transfer of immovable property then provided it is a document which is required to be registered I must in order to give it validity get it registered by employing the procedure laid down in the Registration Act. It is not open to me to ignore the provisions of the Registration Act and, treating the instrument as a contract to transfer--which it is not--compel the transferor to execute a formal transfer--which he has already done.'
After referring to the proviso to Section 49 the learned Judges observed:
'But that is not the same thing as saying that the unregistered instrument is itself, the contract. In the present Case it is not established that any separate agreement to mortgage was entered into prior to the execution of the mortgage deed, to prove which, the mortgage deed might have been tendered in evidence.'
With due deference, we beg to differ. The amended law has to be followed in preference to the old law however well settled, that may be. In our judgment, the language of the proviso is too plain to admit of such construction as was put thereon and there is no reason why effect should not be given to what the amendment law says in clear terms. It will be seen that the above referred to view which conforms to the view taken in ILR 49 Mad 302: (AIR 1926 Mad 530) a case decided prior to the amendment, did not find acceptance with the learned Judges of the same court, in Venkata Seshayya v. District Board, East Godavari, 1939-1 Mad LJ 82: (AIR 1939 Mad 391). Referring to the observation relating to Section 49 quoted above, the learned Judge observed :
'From what has been said by my learned brothers it would follow that the position of a personwho happens to have a duly executed deed of sale or mortgage in his favour is worse than that of a person who holds merely a written contract to sell or mortgage in his possession. It this is the correct position, the latter would, but the former would not, be able to sue for specific performance of the contract and the only remedy which the Person in the unfortunate position of a vendee or mortgagee or a lease holder would have, is to apply for a compulsory registration within the few months provided by the Registration Act failing which his remedy would be barred and tbe conveyance useless.'
With respect, we agree that such an inequitable situation would be inevitable if the plain language of the proviso that permits an unregistered document to be received as evidence of contract in suits for specific performance be so interpreted as to exclude such documents even for that limited purpose. This matter came up before the Full Bench in Subramanian Chettiar v. Arunachalam Chettiar,1943-2 Mad LJ 424:(AIR 1943 Mad 761).
Therein on the terms of the proviso to Section 49 it was held that an unregistered document affecting immovable property may be put in evidence in a suit for specific performance and that if the document so produced embodies the whole agreement between the parties, it is sufficient to support the claim for specific performance. The observations in 1938-2 Mad LJ 362: (AIR 1938 Mad 801) were dissented, from on the ground that the decisions which preceded the introduction of the proviso to Section 49 no longer had any application.
It is thus clear that on the language of the proviso, an unregistered document affecting immovable property, in spite of want of registration, can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. Judged in that manner, the Plea that the document in inadmissible in evidence or that in order to render it admissible, steps should have been taken for its registration by following the procedure in the Registration Act, is of no avail.
12. Now we turn to the main question, whether the document is true and valid. The defendant's contention is that it is a take document, that either his father's signatures are forged hereon or that the entire body of the document was forged on a blank paper signed by his father for its intended use in court in connection with the litigation in O.S. No. 70 of 1945 and which paper came into the hands of the plaintiff. The latter plea has been taken in view of the striking resemblance of the signature of his father on the document.
The court below has disbelieved the testimony of P.Ws. 6 to 8, the attesting witnesses and the scribe, mainly on the balance of probabilities which are strongly in favour of the defendant and held that the document is untrue. Of course, the interested nature of the testimony vitiated further by certain other drawbacks was also an additional ground for its being rejected. The learned counsel contends that curiously enough, the court below refused to consider the genuineness of the signature by a comparison with the admitted signatures of defendant's father on Exs. E. 4 and B. 5 and was moved by other circumstances which were less significant.
While we appreciate that there is a striking resemblance between the admitted signatures of defendant's father and the questioned signature on the suit document, we are not prepared to differ from the legitimate inference that has been drawn by the court below from the facts found on an appraisal of evidence and appreciation of the circumstances of the case.
13-17. (His Lordship discussed the evidence and proceeded). In these circumstances, the court below has rightly come to the conclusion that Ex. A. 12 is not genuine and is not a document which can be held to have been executed by Narasappaoaidu.
We fully agree with this conclusion. The suit on this basis must fail.
18. But even if the document were true, the plaintiff would not be entitled to a decree against the defendant. It is not the case of the plaintiff, as is clear from the plaint itself, that the property demised is the self-acquired property of the deceased. It is ancestral property. The deceased was the karta of the family. A manager of a joint Hindu family has indeed power to alienate immovable properties for purposes binding on the family.
But evidently, this is not a transaction of sale or mortgage nor can it be said to have been effected for purposes binding on the family. It is not even for valuable consideration. It is argued that since the document has been executed in consideration of the past services rendered the contract should be taken as supported by consideration and for a purpose binding. We fail to understand when under Ex. A. 11 itself the property bad been given in lieu of the past services rendered, how a fresh demise for the same purpose can be said to be supported by consideration.
It is argued that the conveyance even if it is not for family necessity should be binding to the extent of the undivided share of the father. The law is clear that it is not open to a manager or a father of a joint Hindu family to alienate by gift his undivided shere or any portion of the family property. Any devise to circumvent this limitation on his power is equally hit by that rule. The cases under Specific Relief Act are no exception to it but are wholly subject to this well established rule.
It will be sufficient if we refer to a few decided cases in this behalf. Ranganatham Chetty v. Ramaswamy Chetty, ILR 27 Mad 162 is a case of alienation by a father. It was held therein that it was not competent to an individual member of a Hindu family to alienatp by way of gift his undivided share or any portion thereof; and that an alienation, so made, is void in toto. It was further held that this principle cannot be evaded by undivided member professing to make an alienation for value when such value is manifestly inadequate.
In that case, the transaction can be upheld against the family, in respect of the alienor's interest in the joint family property only to the extent of the value received. It may be noticed that in that case the estimated value of the property conveyed was about Rs. 11,000 and it was found that the valuable consideration for conveyance was only Rs. 1,000 being a portion of the debt due from the vendor to the vendee on accounts between them. The remaining consideration consisted in favours shown to the vendor and his father and in the help rendered to the vendor and his brother in connection with the Partition suit.
If the property conveyed had been the sole and separate property of the executant, the conveyance might have been perfectly valid and operative in its entirety but since the property conveyed was joint property of himself and his two sons effect could not be given to the conveyance, as if the executant was the sole owner of the whole property or even a third part thereof. The binding nature of the contract therefore was only'to the extent of Rs. 1,000 and the relief was given accordingly. Bappu v. Annamalai Chet-tiar, 44 Mad LJ 236: (AIR 1923 Mad 313) is a case relating to specific performance.
Therein the father being the head of the joint family consisting of himself and his sons one of whom was a minor, contracted to our these immovable property. It was not proved that the contract was either necessary or beneficial to the family. It was held the case did not fall under Section 27(b) or (c) of the Specific Relief Act whereunder specific performance can be granted and further as the contract had not been positively proved to be beneficial to the minor defendant, the claim was liable to be rejected. The learned Judge observed therein:
'It is however well settled that a member of a joint family does not inherit under his father but takes by survivorship, for on his birth he obtains a right in the whole family property and not merely in a portion of it. No doubt when one member of the coparcenary dies his share passes to the others, but it is more a question of lapse of the title of the deceased person rather than an acquisition of title in the survivors, for even before the death of the one coparcener they had a right in the whole of the property including the share of the deceased member. It is therefore difficult to hold that, even as regards this father's share defendants 2 to 4 claim under him by a title arising subsequently to the contract.'
The Full Bench case of Rangayya Reddy v. Subrahmania Aiyar, ILR 40 Mad 365: (AIR 1918 Mad 881) which laid down that coparceners could not be compelled to perform a contract entered into by another coparcener was cited with approval in this case and the Bombay case Bhagwan v. Krishnaji, 22 Bom LR 997: (AIR 1920 Bom 104) was dissented from. We find ourselves in respectful agreement with it and also with the opinion expressed in ILR 27 Mad 162 that a gift of immovable property or even an alienation of an undivided share without consideration or with grossly inadequate consideration cannot be enforceable against the other members of the family. In this view of law, the conveyance in question is neither binding on the defendant or his sons nor is capable of specific performance under the provisions of the Specific Relief Act. Judged from any point of view, there is no force in this appeal. It is therefore dismissed with costs.
19. This appeal having been set down this day for being mentioned as to directions regarding payment of court-fee the court made the following order.
Let the Government apply under the provisions of Order 33Rule 12 C.P.C.