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Laxmi NaraIn Vs. Banshi Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 109 of 1953
Judge
Reported inAIR1965All522
ActsHindu Law
AppellantLaxmi Narain
RespondentBanshi Lal and anr.
Appellant AdvocateK.N. Seth, Adv.
Respondent AdvocateG.P. Bhargava and ;N.D. Ojha, Advs.
DispositionAppeal dismissed
Excerpt:
family - essential elements of family arrangement - hindu law - family arrangement is an agreement - should be for consideration - preservation of peace - good consideration - it can take form of gift - held, it is the intention which is to be considered not the manner in which the family arrangement is made. - - satya kripal, 10 cal 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; , another learned judge constituting the full beach, stated the legal position in the following terms :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..........not accepted as correct. the lower appellate court held that although there was no rectital in the gift deeds showing that they had been executed in pursuance of a family settlement, the circumstances proved it to the hilt that an agreement had bean reached and the two deeds were executed in pursuance thereof. this is a finding on a question of fact and is based on the testimony of witnesses judged in the light of the surrounding circumstances. the finding is amply supported by evidence and there is nothing which may justify an interference with it. mr. seth, learned counsel for the appellant, has therefore concentrated his attack on the conclusions of law drawn by the lower appellate court from the facts found by it. briefly stated, the contentions put forward by mr. seth are as.....
Judgment:

Gangeshwar Prasad, J.

1. This second appeal arises out of a suit for possession of two houses. Admittedly,These two houses along with another house, which is not in dispute, belonged to one Bachcha, and after his death, his widow Smt. Sheoraji entered into possession thereof. On 30th August, 1940 Smt. Sheoraji executed two deeds of gift, one in favour of Makundi defendant No.2 with respect to the two houses in suit and the other in favour of Laxmi Narain plaintiff with respect to the third house. Shortly after the execution of the deeds of gift Smt. Sheoraji died. On 1st September 1948 Makundi sold one of the houses conveyed to him under the deed of gift to Mohd. Yusuf who in his turn sold it to Banshi Lal defendant No. 1. The other house conveyed to Mukandi under the deed of gift was also sold by him to Banshi Lal on 3rd September 1948. The present suit was filed by Laxmi Narain plaintiff as the reversioner of Bachcha, for possession of the houses acquired by Banshi Lalunder the sales mentioned above. It is not in dispute that the plaintiff is Bachcha's daughter's son and that he was the presumptive reversioner during the lifetime of Suit. Sheoraji and became the actual reversioner after her death.

The case of the plaintiff was that Smt. Sheoraji really intended to make a gift of all the three houses in favour of the plaintiff and that she went to the Registration Office in order to execute a deed of gift in favour of the plaintiff and to get it registered, but Makundi, who was living with Smt. Sheoraji and had accompanied her to the Registration Office, managed to get a deed of gift in respect of the house in suit executed in his favour by fraud and resort to improper means. It was stated that Smt, Sheoraji was blind and deaf and it was by taking unfair advantage of her disability that Makundi succeeded in getting the deed of gift executed in his favour. The deed of gift is thus said to be devoid of alt legal effect. The case of the plaintiff further was that, at all events, Smt. Sheoraji was only a limited owner of the houses in suit and consequently the title of Makundi under the deed of gift came to an end upon the death of Smt. Sheoraji and he was not competent to transfer them. On these grounds the plaintiff claimed to be entitled to obtain possession of the houses in suit from Banshi Lal defendant No. 1. It may be mentioned that the plaintiff also alleged that he was a minor at the time of theexecution of the deeds of gift by Smt. Sheoraji.

2. Banshi Lal contested the suit. He alleged that Bachcha had made an oral will of his entire property in favour of Mukandi, who was his sister's son, according to which Smt. Sheoraji was to remain in possession of the property so long as she lived and Makundi was to enter into possession after her death. He further alleged that a little after the death of Bachcha, a dispute arose between Mukundi and Laxmi Narain plaintiff, the former claiming the property of Bachcha as a legatee and the latter as heir. This dispute, according to Banshi Lal, was settled by a family arrangement between the rival claimants and Smt. Sheoraji and it was in pursuance of and in accordance with that family arrangement that the two deeds of gift were executed by Smt. Sheoraji with the consent of the plaintiff and he was, therefore, bound by the arrangement and was precluded from challenging the validity and effectiveness of the deed of gift executed by Smt. Sheoraji in favour of Makundi and of the sale deeds under which Banshi Lal had acquired the houses in dispute. Section 41 of the Transfer of Property Act and Section 115 of the Evidence Act were also pleaded in defence.

3. The trial court decreed the suit, but on appeal by the defendants the suit was dismissed by the lower appellate court and the plaintiff has come in appeal to this Court. Both the courts below held that the deed of gift dated 30th August 1940 in favour of Makundi was executed by Smt, Sheoraji out of her own free will and was not vitiated by any fraud.

They also held that Laxmi Narain plaintiff was not a minor on the date of the execution of the said deed. These findings have not been challenged before ma by the learned counsel for the plaintiff. On the question whether Bachcha made any oral will the trial court gave a categorical finding that Bachcha made no oral will as alleged by Banshi Lal defendant. The lower appellate court was, however, not so emphatic in its finding and observed that although it was quite probable that Bachcha might have made an oral will in favour of Makundi, Banshi Lal defendant had not been able to prove that a will had been made. It was mainly in regard to the family arrangement pleaded by Banshi Lal defendant that the courts below took different views. The trial court found that there was no family arrangement and the plaintiff did not give his consent to the deed of gift executed by Smt. Sheoraji, but, disagreeing with the finding of the trial court, the lower appellate court held that the two deeds of gift were executed by Smt. Sheoraji with the consent and approval of the plaintiff and in pursuance of an agreement to which he was himself a party. On the basis of this finding the lower appellate court came to the conclusion that the plaintiff could not repudiate the deed of gift in favour of Mukundi or the sale deeds in favour of Banshi Lal.

4. Banshi Lal defendant examines a number of witnesses, including the marginal witness to the two deeds of gift executed by Smt. Sheoraji Devi, in proof of the family arrangement. They have testified to the fact that the claims made by Makundi and Laxmi Narain appellant with regard to the property of Bachcha led to a dispute and that the dispute was settled and differences were resolved by an arrangement under which Smt. Sheoraji was to gift the houses in suit to Makundi and the third house to Laxmi Narain. According to the evidence of these witnesses, the two deeds of gift dated 30th August 1940 were executed by Smt. Sheoraji to effectuate the agreement reached by Makundi, Laxmi Narain and Smt. Sheoraji and at the time of execution of the deeds of gift Laxmi Narain, who had consented to their execution, was also present. This evidence was believed by the lower appellate court and the appellant's denial of the arrangement or the agreement and of all knowledge of the deeds of gift was not accepted as correct. The lower appellate court held that although there was no rectital in the gift deeds showing that they had been executed in pursuance of a family settlement, the circumstances proved it to the hilt that an agreement had bean reached and the two deeds were executed in pursuance thereof.

This is a finding on a question of fact and is based on the testimony of witnesses judged in the light of the surrounding circumstances. The finding is amply supported by evidence and there is nothing which may justify an interference with it. Mr. Seth, learned counsel for the appellant, has therefore concentrated his attack on the conclusions of law drawn by the lower appellate court from the facts found by it. Briefly stated, the contentions put forward by Mr. Seth are as follows. Firstly, the arrangement proved by the witnesses examined by Banshilal did not constitute a family arrangement and as such it is not binding on the appellant. Secondly, the deeds of gift purported to be mere alienations made by Smt. Sheoraji to which the appellant was not a party and they cannot, therefore, be regarded as having been executed in pursuance of a family arrangement. Thirdly the appellant did not give his consent to the deed of gift executed by Smt. Sheoraji in favour of Makundi and even if he did so the consent could not render it valid and effective beyond the lifetime of Smt. Sheoraji.

5. It has been urged by Mr. Seth that since no oral will had either been made or could in law have been made by Bachcha, no valid claim to his property could have been advanced by Makundi and an arrangement reached with a view to settle a dispute arising out of such a claim could not partake of the nature of a family arrangement. He has emphasised the fact that Makundi and everybody else, who was concerned in the matter, should be presumed to have known that an oral will was not recognisable and the person entitled to the property of Bacncha alter the death of Smt. Sheoraji was obviously the appellant, and in such circumstances there was no doubtful claim to be settled and no genuine or bona fide dispute to be avoided or set at rest. The argument is based on decisions in which the existence of a bond fide dispute or a doubtful claim was considered essential for the validity of a family arrangement and the most important among them is of Mittar Sain v. Data Ram, : AIR1926All194 . In that case the requisites of a family arrangement were laid down by Sulaiman, J. (as he then was) as follows :

'Lindsay, J. has correctly pointed out that a family arrangement is one arrived at by members of the same family in settlement of doubtful claims, cases in which there being uncertainty as to the rights of various claimants, the dispute being composed by a settlement based upon the acknowledgement ot pre-existing title in the parties concerned. There must be a bona fide dispute which has to be settled by a private family arrangement without having recourse to law.'

This view was, however, expressly dissented from in the case of Pokar Singh v. Mt. Dulari Kunwar, : AIR1930All687 where it was held that it is not necessary for the validity of a family settlement that there should have been a dispute existing between the parties at the time of the family settlement. In Raghubir Datt v. Narain Datt, : AIR1930All498 it was again held that a dispute in prassenti is not essential to the validity of a family arrangement but it was observed that the existence of a doubtful claim was necessary. The conflict between these varying views as to the essentials of a family arrangement was resolved and the law, so far as this Court is concerned, was settled in the Full Bench decision in the case of Mst. Dasodia v. Gayaprasad : AIR1943All101 . In that case Collister J., after a review of the authorities on the question, observed as follows :

'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 : AIR1930All687 and was cited with approval by High Court of Calcutta in Helen Dasi v. Durga DAS. 4 Cal L J 323 and also in Satya Kumar v. Satya Kripal, 10 Cal 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 tor 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.'

5a.. Again, Dar J., another learned Judge constituting the Full Beach, stated the legal position in the following terms :

'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 arrangementdid 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.'

5b. On the authority of this Full Bench decision, therefore, it must be held that a family arrangement does not presuppose the existence of a claim which is either well-founded or may have a chance of being established nor does it necessarily involve reciprocal - sacrifice of right or interest. A claim may be discovered to have been unfounded or it might even have been known as such when it was made, but if the dispute to which it gave rise threatened the peace of the family or endangered the family property an arrangement arrived at for composing differences, for maintaining amity and good relations or for preserving the property, would be upheld as a family arrangement. Indeed even a dispute in praesenti is not necessary and a family arrangement may have for its basis the preservation of peace and property only. Judged in this light, it cannot be said that the arrangement proved by Banshi Lal defendant did not constitute a family arrangement.

6. Stress was laid by Mr. Seth on the fact that the value of the property gifted to Makundi was far in excess of the value of the property gifted to the appellant and at any rate it was disproportionate to the kind of claim which was sought to be settled by the arrangement. Adequacy of consideration, however, has not to be scrutinised meticulously by the Court, and preservation of peace may itself form a good consideration. Of course a family arrangement like all other agreements should not suffer from those defects which vitiate all agreements, but if none of those vitiating factors are present a family arrangement has to be upheld.

7. It is true that the deeds of gift do not by their terms speak of any family arrangement and they purport to be alienations pure and simple. But it appears to me that a family arrangement may take the shape of a gift in favour of the claimants to the property or the parties to the arrangement. The manner in which the arrangement has been clothed is not decisive of the matter and if it is found established that it was to effectuate a family arrangement that a deed of gift was executed, it cannot be said that the deed of gilt is itself destructive of a case of family arrangement. On this aspect of the case I can do no better than quote the following observations of the Supreme Court in the case of Sahu Madho Das v. Mukand Ram, : AIR1955SC481 :

'But, in Our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.'

7a. From tbe fact, therefore, that the deeds of gift executed by Smt. Sheoraji were on their face transactions representing only alienation of propertyto which the appellant was not a party it cannot be urged that they can in no circumstance be regarded as the result of a family arrangement.

8. Even apart from a family arrangement, the deed of gift in favour of Maknndi is sustainable on the ground of election, The evidence led by Banshi Lal is that Laxmi Narain appellant was a party to the agreement under which Smt. Sheoraji was to execute the two deeds of gift and had expressly consented to their execution. As many as four witnesses were examined by Banshi Lal to prove the agreement and the consent. Their evidence was accepted by the lower appellate court and there is no reason why it should not have been accepted. Mr. Seth conceded that the two deeds of gift were inseparable and were really parts of the same transaction. It was established in evidence that the appellant also accompanied Smt. Sheoraji when she went to the Registration Office to execute the deeds of gift and he was present at the time of their execution. The circumstances of the case, therefore, clearly make the doctrine of election applicable and it is not open to the appellant to impugn the validity of the deed of gift in favour of Makundi. I may in this connection again refer to the case of : AIR1955SC481 , where their Lordships of the Supreme Court laid down that

'the law is that once a reversioner has given his assent to an alienation, whether at the time, or as a part of the transaction, or later as a distinct and separate act, he is bound though others may not be, and having given his assent he cannot go back on it to the detriment of other persons : alt the more so when he himself receives a benefit.'

9. In the present case there is no dispute that the appellant, derived a benefit from the transaction which the two deeds of gift executed by Smt. Sheoraji represented. It was not possible for the appellant to have obtained possession of any portion of the property of Bachcha during the lifetime of Smt. Sheoraji and it was only by virtue of the gift executed by Smt. Sheoraji in favour of the appellant that he became the owner of one of the houses left by Bachcha and became entitled to take possession of it, It is a matter of no consequence that Smt. Sheoraji died shortly after. The fact remains that the appelant became the owner of one of the houses as a result of the deeds of gift which, as I have said above, should be regarded as parts of the same transaction.

10. There is also the fact that for about nine years after the death of Smt. Sheoraji, which admittedly took place in 1940, no action was taken by the appellant to challenge the validity or effect of the deed of gift in favour of Makundi or to obtain possession, of the houses comprised in the deed of gift. It is certainly true that the plaintiff could have availed of the period of limitation allowed for a suit of possession but the fact that no effort was made to obtain possession of the property gifted to Makundi for about nine years is not without significance. Inaction on the part of the plaintiff might not in itself be sufficient for an inference regarding his election or ratification, but it is a circumstance of great value in judging whether the appellant had given his consent to the deed of gift executed in favour of Makundi. The principles relating to consent and ratification of a transaction by a presumptive reversioner have been laid down in T. V. R. Subbu Chatty's Family Charities v. Raghava Mudaliar AIR 1981 S C 797 by their Lordships of the Supreme Court in the following words :

'Thus it may be taken to be well settled that if a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner. The doctrine of ratification may also be invoked against a presumptive reversioner who, though not a party to the transaction, subsequently ratifies it with full knowledge of his rights by assenting to it and taking benefit under it. It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would not preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner. It must always be a question of fact as to whether the conduct of the said reversioner on which the plea of ratification is based does in law amount to ratification properly so-called.'

On the facts found in the present case there is no doubt that the appellant accepted the arrangement under which the gift deed in favour of Makundi was executed, gave his consent to it and ratified it.

11. It has been argued by Mr. Seth that the fact that the appellant received some benefit under the transaction (gift in favour of the appellant! and his inaction for a number of years cannot preclude him from asserting his rights as a reversioner and he has relied on the observations of their Lordships of the Supreme Court in the above quoted case to the effect that

'the principle of election or estoppel or ratification must be applied with due circumspection and the mere fact that the reversioner has received some benefit under the transaction or has not challenged the validity of the transaction when it took place cannot bar his rights as a reversioner when reversion in his favour falls open.'

In the present case there is a positive finding to the effect that the appellant was a party to the agreement under which the deeds of gift came to be executed and he gave his consent to their execution. Further, his inaction in not challenging the deed of gift was not limited to the lifetime of Smt. Sheoraji but extended to about nine years after her death. In these circumstances, a clear case of ratification has been made out. The contention of Mr. Seth that the consent given by the appellant may at best be regarded as a consent to the validity of the deed of gift during the lifetime of Smt. Sheoraji is plainly untenable. Even without the consent of the appellant the gift deed in favour of Makundi would not have been lacking in validity while Smt. Sheoraji lived, and it was only to confer validity upon the deed after the death of Smt. Sheoraji that the consent of the appellant was necessary. The consent proved in this case and the conduct of the appellant leave no room for doubt that the appellant accepted the validity of the deed of gift even beyond the lifetime of Smt. Sheoraji.

12. On the facts proved in the case of the appellant he was, therefore, not entitled to a decree and his suit has been rightly dismissed. The appeal fails and it is accordingly dismissed. Parties will bear their own costs in this case.


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