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Mt. Dasodia Vs. Gaya Pd. Minor Through Sadho Ram - Court Judgment

LegalCrystal Citation
SubjectFamily ; Property
CourtAllahabad
Decided On
Reported inAIR1943All101
AppellantMt. Dasodia
RespondentGaya Pd. Minor Through Sadho Ram
Excerpt:
- - 4, we find a list of family arrangements for division of property which have been supported by the courts and one of them is an arrangement where there is no question as to the devolution of the property nor any disputed right, there being some consideration for the arrangement other than love and affection. the appellant was merely prompted by respect for his father's intentions and by his affection for his brother, both most excellent and praiseworthy motives, but scarcely sufficient to constitute such a consideration as would convert an act of kindness into a binding engagement. a family arrangement, to be good, need not necessarily be a 'compromise of doubtful rights. 2941 it was definitely stated that for a family arrangement to be good it was not necessary that there should.....collister, j.1. this is a plaintiff's second appeal. the plaintiff appellant is mt. daaodia and the defendant-respondent is gaya prasad, the minor son of sadho ram. the suit was for recovery of property which had belonged to a man named bal govind, who died in 1920. at his death he left a widow, by name mt. sundaria, and three daughters, mt. dasodia--the appellant before us--mt. rukmania and mt. baj kumari. mt. rukmania was married to sadho ram, father of the respondent. she predeceased her mother, who died in 1932. mt. raj kumari died in 1934 without issue. the appellant is married to a man named ram kirpal and they have two sons. after the death of mt. sundaria the property passed to her two remaining daughters, namely the appellant and mt. raj kumari, in equal shares with a right of.....
Judgment:

Collister, J.

1. This is a plaintiff's second appeal. The plaintiff appellant is Mt. Daaodia and the defendant-respondent is Gaya Prasad, the minor son of Sadho Ram. The suit was for recovery of property which had belonged to a man named Bal Govind, who died in 1920. At his death he left a widow, by name Mt. Sundaria, and three daughters, Mt. Dasodia--the appellant before us--Mt. Rukmania and Mt. Baj Kumari. Mt. Rukmania was married to Sadho Ram, father of the respondent. She predeceased her mother, who died in 1932. Mt. Raj Kumari died in 1934 without issue. The appellant is married to a man named Ram Kirpal and they have two sons. After the death of Mt. Sundaria the property passed to her two remaining daughters, namely the appellant and Mt. Raj Kumari, in equal shares with a right of survivorship inter se, and on the death of Mt. Raj Kumari the appellant would have succeeded to her share and would thus have had a life interest in the whole estate; but 17 or 18 days after the death of Mt. Sundaria an 'arrangement' was concluded between the appellant and her sister and the respondent -- under the guardianship of his father --whereby Mt. Raj Kumari retained one-third only of the property, one third was given immediately to the two sons of the appellant and the remaining third was given to the respondent. On 7th May 1937 the appellant raised this action to recover possession of the property in the hands of the respondent, and the suit was resisted on the basis of the above mentioned family arrangement. The trial Court and the lower appellate Court both upheld the validity of the family arrangement and dismissed the suit. A second appeal was then preferred to this Court, which came before Braund J. That learned Judge has referred a question of law for the consideration of a Full Bench. In his referring order ho mentions a concession made before him to the effect that the respondent had no beneficial interest in the property at the time of the arrangement and also a finding that no dispute existed between the parties after the death of Mt. Sundaria, and he then says:

The question that has arisen, therefore, is whether there can be a family arrangement in a case not only where there was no present dispute between the parties, but where there did not even exist any doubtful claim. Upon this matter there appears to exist a conflict of authorities in this Court.

2. The learned Judge then cites these authorities, and finally he has referred the following question of law to the Full Bench:

Whether it is essential for the establishment of a valid family arrangement that it should be made in contemplation of (a) a doubtful claim and/or (b) an actual dispute or controversy as to a doubtful claim between the parties to the family arrangement?

3. At our request the learned Chief Justice has now referred the whole appeal to us, Braund J. being away on deputation. In considering the questions of law which arise out of this appeal, I shall confine myself to a discussion of those reported decisions in which the litigation was between members of the family who were parties to the arrangement, as in the case before us; I do not propose to discuss those cases in which the family arrangement was challenged by a reversioner who was no party to it, inasmuch as in the last mentioned class of cases different considerations will arise. The first case which I propose to mention is Williams v. Williams (1867) 2 Ch. A. 294, for it is mainly upon this authority that my decision will rest. In that case a man named John Williams died in 1831, leaving a widow and two sons, John, who was the elder and Samuel. The deceased left real estate of three different tenures, namely gavelkind, socage and borough English. He also left a tannery business. After his death a testamentary paper was found, whereby the deceased purported to bequeath the whole of his property, real and personal, to his two sons equally, but subject to certain provisions for his widow during her life. This documentary paper was, however, unattested and therefore invalid, and probate was accordingly refused. Thus, the deceased having died intestate, his two sons became equally entitled to the gavelkind portion of the estate, his elder son John became exclusively entitled to the socage parts and his younger son Samuel became exclusively entitled to the borough English portion--which was considerably less than the socage parts. The personal estate was divisible between the widow and the two sons in equal shares and the widow was also entitled to dower and free-bench. However, when probate of the will was refused, the elder brother declared that the invalidity of the will should make no difference between himself and his brother and that the property should belong to both of them. Thereafter, for 20 years, the property was treated and dealt with as the common property of the two brothers and they continued to carry on the tannery business on the same premises as heretofore. The widow lived with them until her death and she never asserted her legal rights in the property. This state of affairs continued until 1851, when disagreement arose between the two brothers, which led to litigation. It was held by Lord Chelmsford, L. C. and Sir G. J. Turner L. J., affirming the decree of Kindersley, V. C., that there was sufficient evidence of a family arrangement which the Court would uphold.

4. This case was considered by a Bench of this Court -- Mukerji and Bennet JJ. in Pokhar Singh v. Dulari Kunwar : AIR1930All687 (also reported in 1930 A.L.J. 688.) In that case a man named Kunwar Dalip Singh died in 1893, leaving a widow and four daughters. In 1898, the mother and the four daughters executed a document whereby the immovable property left by Kunwar Dalip Singh was divided into five lots, apparently of equal value. One lot was taken by the mother and one was taken by each of three daughters. The fourth daughter was a childless widow and she accepted an annual maintenance of Rs. 1400 in lieu of the lot which would otherwise have gone to her; and that lot was jointly taken by her three sisters. It was further agreed that, if any of the sisters--other than the childless widow --were to die without male issue, her share would be taken by the other sisters, excluding the aforesaid widow, but that, if any of these sisters died leaving male issue, her share would pass exclusively to such issue. The learned Judges upheld this family arrangement. They held that the existence of a dispute is not essential to the validity of a family arrangement and they further held that such an arrangement to be valid need not necessarily be a compromise of doubtful rights or claims. The learned Judges delivered separate judgments and each of them has mentioned the case in (1867) 2 ch. A. 294. I shall have occasion to deal with this case in a little more detail at a later stage of my judgment. In Raghubir Dat v. Narain Dat : AIR1930All498 Sen and Niamatullah JJ. also held that a dispute in praesenti is not essential to the validity of a family arrangement; but they have expressed the view that the existence of a doubtful claim is necessary. At page 1547 the learned Judges say:

The existence of a doubtful claim is essential for a family settlement, but the existence of a dispute or controversy in praesenti is not.

5. They continue with the following observation:

A family settlement may be supported on the ground of maintaining peace and goodwill amongst the members of the family, for the preservation of the family honour or of the family property and for the avoidance of disputes and litigation in future.

6. Thus, a difference of opinion emerges between these two Bench decisions of our Court as to whether the existence of a doubtful claim is or is not essential to the validity of a family arrangement; but it will be noticed that in the second of the two above-mentioned cases there is no consideration of Williams v. Williams (1867) 2 Ch. A. 294. It will also be seen that in that ease there was a dispute between the parties and therefore the observation that the existence of a doubtful claim is essential to the Validity of a family arrangement was unnecessary for the decision of the appeal. The case in Williams v. Williams (1867) 2 ch. A. 294 has also been cited with approval by the High Court of Calcutta in Helan Dasi v. Durga Das Mundal 4 C. L. J. 323. At page 331 Mookerjee J. says:.as is pointed out in the case in Williams v. Williams (1867) 2 Ch.A. 294,1 a family arrangement may be upheld, although there were no rights actually in dispute at the time of making it, as the Courts will not be disposed to scan with much nicety the quantum of the consideration. Lord Chelmsford L.C. observed that it is a mistake to suppose that the doctrine of family arrangements extends no further than arrangements for the settlement of doubtful or disputed rights, and proceeded to hold that the principle is applicable 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.

7. The learned Judge went on to hold that it was 'tolerably clear' that in the case before him and his learned brother there was a doubtful claim; but from his reference to the case in Williams v. Williams (1867) 2 ch. A. 294 it is legitimate to infer that, even if there had been no doubtful claim, he would have been inclined to uphold the validity of the family arrangement. The case in (1867) 2 ch.A. 294 was again referred to with approval by Mookerjee J. in Satya Kumar Banerjee v. Satya Kripal Banerjee ('09) 10 C. L. J. 503. We find it again referred to by a Bench of the same Court in Basantakumar Basu v. Ramshankar Ray : AIR1932Cal600 but after referring to various decisions the learned Judges Mukerji and Guha JJ. say at p. 884:

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 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, and from this it follows that there must be either a dispute or at least an apprehension of a dispute, a situation of contest, which is avoided by a policy of giving and taking; or else all transfers or surrenders will pass under the cloak of a family arrangement.

8. Other authorities have been brought to our notice, but I do not think that they are very applicable to the particular facts of the case which is before us for decision. It is now settled law -- so far at least as this Court is concerned -- that the existence of a family dispute is not essential to the validity of a family arrangement. This was held, as I have already shown, by two Division Benches of our Court, in Helan Dasi v. Durga Das Mundal ('06) 4 C.L.J. 323 and Raghubir Dat v. Narain Dat : AIR1930All498 , and the same has also been held by the High Court of Calcutta in Helan Dasi v. Durga Das Mundal ('06) 4 C. L. J. 323, already referred to. It has further been held by a Full Bench of this Court in Ramgopal v. Tulshi Ram : AIR1928All641 , that a binding family arrangement dealing with immovable property of the value of Rs. 100 or upwards can be made orally; but if the arrangement is reduced to the form of a document for the purpose of formally recording the arrangement and the document is not registered, the absence of registration will make the document inadmissible in evidence and is fatal to proof of the arrangement indicated in the document. In the case before us, the arrangement was not reduced to writing and it has not been suggested to us that the application which was made in the mutation Court was a document which should have been registered as a document of title embodying the terms of the arrangement. The real question for our determination is whether the existence of a doubtful claim is essential to a family arrangement so as to make it binding upon the parties thereto. The law in England is expounded in Halsbury's Laws of England, Edn. 2, by Lord Hailsham, vol. 15. In para, 4, p. 4, we find a list of family arrangements for division of property which have been supported by the Courts and one of them is an arrangement where there is no question as to the devolution of the property nor any disputed right, there being some consideration for the arrangement other than love and affection.

9. This statement of the law is based upon the ease in Williams v. Williams (1867) 2 Ch. A. 294. Paragraph 12 at page 10 reads:

The Court will support as a family arrangement any transaction between members of the same family which is generally for the benefit of the family estate or of all the parties concerned.

In Pokhar Singh v. Dulari Kunwar : AIR1930All687 , already referred to, Mukerji J. states that in respect to the matter of family arrangements the law in India has been borrowed from England and it has not been disputed that the principles of English law would apply to India.

10. Before us also this proposition is accepted. I have already set out the facts in Williams v. Williams (1867) 2 Ch. A. 294. It will be seen that in that case there was no doubtful claim. The father had died intestate and it does not appear that there was any controversy as regards succession to the property. At page 300 Lord Chelmsford says:

There was here no doubtful right to be compromised, no dispute between the brothers which was to be sot at rest, no honour of the family involved; the appellant was merely prompted by respect for his father's intentions and by his affection for his brother, both most excellent and praiseworthy motives, but scarcely sufficient to constitute such a consideration as would convert an act of kindness into a binding engagement. If, therefore, there had been no consideration for the appellant's promise to share the-freehold property with his brother, I should have been disposed to hold that he could not be bound by it. But it appears to me that there is quite sufficient consideration to prevent its being a mere voluntary agreement, and that the Court will not be disposed; to scan with much nicety the amount of the consideration. The borough English property, which belonged to Samuel, was of some, though of trifling value, and was brought by him into the common stock; and in a case of this kind some consideration may perhaps be found in the fact of Samuel leaving his share of the stock in trade in the business and continuing to carry it on instead of breaking up the concern. But there can be no doubt that the widow was a party to the whole arrangement and the consideration moving from her must be taken into account.

11. Turner L. J. expressed the same view in different words. As I have already shown, this decision was followed by Mukerji and Bennet JJ. in Pokhar Singh v. Dulari Kunwar : AIR1930All687 and was cited with approval by the High Court of Calcutta in two cases, which I have mentioned, namely Helan Dasi v. Durga Das Mundal ('06) 4 C. L. J. 323 and Satya Kumar Banerjee v. Satya Kripal Banerjee ('09) 10 C. L. J. 503. In Pokhar Singh v. Dulari Kunwar : AIR1930All687 Mukerji J. quotes the following definition of a family arrangement from Halsbury's Laws of England, vol. 14, page 540:

A transaction between members of the same family which is for the benefit of the family generally, as for example, one which tends to the preservation of the family property, to the peace or security of the family and the avoidance of family disputes and litigation, or to the saving of the honour of the family.

He then says:

It will be noticed that avoidance of family disputes is only one of the many grounds which go to validate a family arrangement. A family arrangement, to be good, need not necessarily be a 'compromise of doubtful rights.' In (1867) 2 Ch. A. 2941 it was definitely stated that for a family arrangement to be good it was not necessary that there should be a family dispute which had to be settled or composed. The idea that the existence of a dispute is essential is due to this, that where there is a dispute the settlement of it will constitute the consideration for the parties to act as they propose to do. But where the object is the preservation of the property or preservation of the family peace, there is in existence no such or any consideration for the contract. The case in (1867) 2 Ch. A. 2941 was approved of in India in 4 C. L. J. 323 by two eminent Judges of the Calcutta High Court.

12. The learned Judge then refers to an earlier decision of this Court in Mittar Sain v. Data Ram : AIR1926All194 and says:

In 24 A. L. J. 185, Sulaiman J. expressed the opinion that for the existence of a family settlement there must be a settlement of doubtful claims. At p. 206 the learned Judge said: 'There must be a bona fide dispute which has to be settled by a private family settlement without having recourse to law. In the present case there could be no dispute whatsoever.' With all respect I am unable to accept this view, and I have already quoted authorities in support of my view. I may point out that in support of his opinion the learned Judge did not quote any authority.

13. Further on the learned Judge makes it clear that in the case before him and his learned brother there was good consideration for the arrangement. In my opinion the English law on the subject, as propounded in Halsbury's Laws of England, and in particular the decision in Williams v. Williams (1867) 2 ch.A. 294, which does not differ in essentials from the case before us and which was followed by this Court in Pokhar Singh v. Dulari Kunwar : AIR1930All687 and was cited with approval by the High Court of Calcutta in Helan Dasi v. Durga Das Mundal ('06) 4 C. L. J. 323 and also in Satya Kumar Banerjee v. Satya Kripal Banerjee 10 C. L. J. 503 afford good authority for the proposition that a doubtful claim based on the allegation of an antecedent title is not essential for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property. But there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement. We must therefore investigate whether there was any consideration in the case which is before us for our decision. It will be seen that, if the appellant had died before Mt. Raj Kumari, her sons would have had to wait until the latter's, death; and if the appellant's sons had predeceased their mother, their sons would have inherited nothing. In return for the third share which the two ladies gave to the respondent, they obtained the services of Sadho Ram who is described in the trial Court's judgment as 'the only active male member of the family' -- and the appellant secured for her sons an absolute title in prsenti in the one-third share in which she had a life estate. Thus, it cannot be denied that the appellant received consideration under this family arrangement; and in the circumstances I am of opinion that it is perfectly valid quoad the parties to it.

14. We have been referred to various authorities on the subject of what is variously described as estoppel, equitable bar and election--vide in particular Fateh Singh v. Thakur Rukmini Bamanji Maharaj ('23) 10 A.I.R. 1923 All 387, and I think it might well be possible to dispose of this case on such lines; but having found that the family arrangement is binding on the plaintiff appellant, it is unnecessary for me to consider the case from any other aspect. In my opinion, the appeal should be dismissed.

Bajpai, J.

15. I have had the advantage of having read the judgments of the other two members composing the Full Bench and I feel that I can contribute nothing useful to what has been said by them. Now that the whole case has been referred to this Bench I entertain no difficulty about the decision. I agree with my learned brothers that the appeal ought to be dismissed. The plaintiff was a party to the agreement and as between the parties to the agreement the position is clear. The agreement cannot be said to be without consideration, nor need the quantum of consideration in such cases be scrutinised with meticulous nicety, and estoppel or equitable bar applies against the plaintiff. I also agree that the case in (1867) 2 Ch. A. 294 should be followed in this country, as indeed it has been followed in several cases, as pointed out by my brother Collister. I also think the law of family arrangement was correctly laid down by this Court in 52 ALL. 716.

Dar, J.

16. This appeal has arisen out of a suit for possession of a small zamindari property in Banda District. The plaintiff's suit for possession of the property was dismissed by the Munsif of Banda and this dismissal was affirmed in appeal by the Additional Civil Judge of Banda. The plaintiff has now made this second appeal. The property in suit is a portion of an estate of a Hindu named Balgovind, who lived and died at village Singhpur Mafi in Banda District in the year 1920. On his death his estate real and personal--which included a house and some zamindari share in village Singhpur Mafi--devolved upon his widow Mt. Sundaria, who held the estate till her death in May 1932, Balgovind and Mt. Sundaria also left three daughters--Mt. Dasodia, the plaintiff, Mt. Rukmania, who predeceased Mt. Sundaria, and Mt. Rajkumari, who died in 1934. Mt. Dasodia is married to Ram Kripal and has two sons living, namely Bhagwat Prasad and Narbada Prasad. Mt. Rukmania was married to Sadho Ram and she has left one son, Gaya Prasad, the defendant. Mt. Rajkumari, the third daughter, was married to Lakshman Prasad.

17. After the death of Mt. Sundaria, her two surviving daughters Mt. Dasodia, the plaintiff, and Mt. Rajkumari and the daughters' sons, Bhagwat Prasad, Narbada Prasad and Gaya Prasad, entered into an arrangement by which they divided the real and personal estate of Balgovind as it was left by Mt. Sundaria in three shares, one share was allotted to Bhagwat Prasad and Narbada Prasad, one share to Gaya Prasad and one share to Mt. Rajkumari. This partition of the estate was made in a friendly way and was not incorporated in any document. But reference was made to it in a petition, dated 9th July 1932, submitted to the revenue Court by the parties for mutation of names in terms of the above arrangement, and by consent of the parties mutation was effected in terms of the above arrangements and the parties entered in possession of their shares which was thus allotted to them. On the death of Mt. Rajkumari in 1934 the share which had gone to her under the arrangement was taken possession of by Mt. Dasodia, and on 7th May 1937, she raised an action in the Court of the Munsif of Banda out of which this appeal has arisen for recovery of possession of the share which had been allotted to Gaya Prasad, the defendant, under the said arrangement of 1932. Both the Courts below have dismissed the claim holding that it was barred by the family arrangement of 1932. The validity of this family arrangement has been mainly challenged on two grounds--want of consideration and absence of a stamped and registered deed to support it, and these are the two matters for our consideration in this appeal.

18. The question of consideration does not present any serious difficulty. On the death of Mt. Sundaria, her two daughters Mts. Dasodia and Rajkumari were entitled to a joint life estate with a right of survivorship and the three daughters' sons were the contingent reversioners. The contingent rights of Bhagwat Prasad and Narbada Prasad, the sons of Mt. Dasodia, depended upon their surviving Mt. Dasodia and Mt. Raj Kumari and their mother Mt. Dasodia preferred to change this uncertainty to a certainty. She preferred to forgo her immediate life-estate in order to benefit her two sons. It is possible there was some other consideration also. Both Mts. Dasodia and Rajkumari were married in different villages and were living with their husbands. Gaya Prasad's father Sadho Ram, the husband of Mt. Rukmania, had been living for a long time in village Singhpur Mafi and helping Mt. Sundaria in managing and cultivating the estate. The estate left by Mt. Sundaria mostly consisted of sir and khudkasht which required the attention of a male member living on the spot, and two daughters Mts. Dasodia and Rajkumari, who were married in different villages were not in a position to make a good use of their father's estate and it was to their interest to find some inducement for Sadho Ram to continue the management which had subsisted in Mt. Sundaria's lifetime, and one good inducement to give to Sadho Ram was to convert the expectancy of his son Gaya Prasad into a present possession by giving him one-third share of the estate. The arrangement undoubtedly was made between members of a family, namely between Balgovind's daughters and daughter's sons. It is not disputed that good relations prevailed between them and the object of the arrangement was to maintain good relations to preserve the family property and to convert the expectancy of the reversioners into a certainty. The Court never scans consideration in family arrangements with any minuteness and even if the consideration moving from Sadho Bam may be disregarded, the consideration that Mt. Dasodia's sons were getting immediate possession of one-third of the property and their expectancy was going to be converted into a certainty was a sufficient consideration in law to uphold the arrangement against Mt. Dasodia.

19. But it is said that although the arrangement was between the members of a family and it was also for a consideration other than love and affection, yet it was not a family arrangement, because no bona fide dispute and no doubtful claim existed at the time when the arrangement was made and the arrangement did not involve a settlement of dispute on the basis of an antecedent title, but it was in substance a mere division of the estate amongst persons who had agreed to divide it. A bona fide dispute, a doubtful claim or settlement on the basis of an antecedent title is not absolutely essential in all family arrangements. A family arrangement, at bottom, is nothing but an agreement and the essential thing is that it should be for consideration. When the arrangement is between members of a family and the object of the arrangement is to preserve family honour, family property and family peace, a Court of equity favours these transactions and is not inclined to examine with meticulous care the consideration which moved the parties to this arrangement. If there be disputes between the parties and if there be opposing claims between them, the abandonment of the claim by one party in favour of the other, may form good consideration in law even though the claim may eventually turn out to be unfounded. In such a case the question of a bona fide dispute or a doubtful claim may be a matter of some consideration. But there is another class of arrangement in which the abandonment of claim by one side against the other need not be a consideration at all and there may be some other consideration but different from love and affection. In such a case the consideration being there available in a different form, it is not necessary that there should be a further question in the form of abandonment of claim, and in such a case neither a bona fide dispute, nor a doubtful claim nor a settlement on the basis of an antecedent title is essential for the formation of a valid family arrangement. The law on this subject is thus stated in Hulsbury's Laws of England, Edn. 2, Vol. 15, at page 4:

The following arrangements for division of property have been supported:

An agreement for the division of family property by way of compromise of a family quarrel or litigation about a disputed will, or even to prevent family friction, where there is no question as to the devolution of the property nor any disputed right, there being some consideration for the arrangement other than love and affection, or any arrangement as to division of property where the construction of a will or other instrument under which the parties' claim is doubtful.

20. In the well-known case in (1867) 2 ch. A. 294, the law on this subject was stated by Lord Chelmsford and Turner L. J. Lord Chelmsford observed:

So far as the motives which led the appellant to admit his brother to an equal share of their father's property are concerned, this case differs from those cases of family arrangement which have formerly been the subject of decision. There was here no doubtful right to be compromised, no dispute between the brothers which was to be set at rest, no honour of the family involved; the appellant was merely prompted by respect for his father's intentions and by his affection for his brother, both most excellent and praiseworthy motives, but scarcely sufficient to constitute such a consideration as would convert an act of kindness into a binding engagement. If therefore there had been no consideration for the appellant's promise to share the freehold property with his brother, I should have been disposed to hold that he could not be bound by it. But it appears to me that there is quite sufficient consideration to prevent its being a mere voluntary agreement, and that the Court will not be disposed to scan with much nicety the amount of the consideration.

Turner L. J., observed:

Nor do I think there was any want of consideration. The Vice-Chancellor has, and I think correctly, rested this part of the case upon the footing of the cases as to family arrangements. It was strongly argued for the appellant that this ease does not fall within the range of those authorities; that those cases extend no further than to arrangements for the settlement of doubtful or disputed rights, and that in this case there was not, and could not be, any doubtful or disputed right; but this, I think, is a very short-sighted view of the cases as to family arrangements. They extend, as I apprehend, much further than is contended for on the part of the appellant, and apply, as I conceive, not merely to cases in which arrangements are made between members of a family for the preservation of its peace, but to cases in which arrangements are made between them for the preservation of its property. The resettlement of family estate upon an arrangement between the father and the eldest son on his attaining twentyone, may well be considered as a branch of these oases and certainly this Court does not in such oases inquire into the quantum of consideration.

21. It is now contended that a division of family property in which there was no dispute as to the title of the property and in which there was no settlement made of the disputed title is nothing in law but a transfer of the property by a person who has the title in favour of a person who has no title and such a transfer is nothing in law but a gift and can only be made by a document duly stamped and registered. In Ramgopal v. Tulshi Ram : AIR1928All641 and Mt. Mahadei Kunwar v. Padarath Chaube : AIR1937All578 , it has been held by this Court that a family arrangement can be made by a word of mouth and in its true nature the family arrangement does not involve a transfer of property from one side to the other and a document is not necessary for its coming into existence. Mr. Malik contends that this may be true of those family arrangements in which there is a settlement on the basis of an antecedent title but this cannot apply where the title is all acknowledged on one side and the property is given to the other side which has no title and in a case where the title is all on one side and the property is given all to the other side which has no title, the transaction is nothing but a gift though it may be clothed in the form of a family arrangement. In the first place, all the parties to the family arrangement which we are considering in this case had some title to the property. The daughters' title was in praesenti and was a vested one; the title of the daughters' sons was to arise in future and was a contingent one. Nevertheless they all had some title and all had some rights in the property.

22. Secondly, by the arrangement which was made no gift was made by one party to the other, nor any transfer was made by one party to the other. But in the daughters' sons their succession was accelerated and this was done in recognition of their rights as reversioners. I am clear in my mind that the settlement which was made between the daughters and the daughters' sons and which is embodied in this family arrangement was in recognition of the antecedent title of each other and the transaction in no sense can be regarded as a gift by the daughters to the daughters' sons so as to attract the provisions of the Transfer of Property Act relating to gifts for the purpose of stamp and registration and this transaction comes within the principles in Ramgopal v. Tulshi Ram : AIR1928All641 mentioned above. But if there be any difficulty in the matter I should be prepared to hold that the transaction was really an acceleration of the estate in favour of the reversioners as a result of the daughters declining to take the estate which had come to them by succession. A Hindu daughter is not compelled to accept an estate of inheritance and if she declines to take it the estate cannot remain in abeyance and it automatically goes to the reversioners, and this transaction whatever else it may be is not a gift or a transfer which comes within the scope of the Transfer of Property Act in the circumstances mentioned above.

23. We are not required in this case to consider the effect of this family arrangement upon the right of some person who is not a party to this compromise but who might in future be the actual reversioner of Balgovind's estate on the death of the last surviving daughter, Mt. Dasodia. As between the parties who have made the arrangement--and the plaintiff and the defendant in this case are such persons--the law is as I have stated above, but different considerations may arise with regard to the arrangement made by a person holding a Hindu widow's estate as against the reversioners who are not parties to the arrangement. In order to make a family arrangement made by a Hindu female who holds a Hindu widow's interest in the property binding on the reversioners who are not parties to the arrangement, it will not be sufficient to find that the female received some consideration other than love and affection to uphold the transaction. Questions will arise with regard to the female's power to represent the estate and to bind the reversioners and in such a case the questions whether there was a bona fide dispute and whether there were doubtful claims and above all whether it was a claim on the basis of an antecedent title might be vital matters. In my opinion, the family arrangement in this case was not open to challenge by the plaintiff and her claim was rightly dismissed by the Courts below, and this appeal is without force and should be dismissed.

24. For the reasons given in our judgments we dismiss this appeal with costs.


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