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P.G. Hariharan and Ors. Vs. Padaril Deceased Kunhambu's Children Balachandran and Ors. (20.08.1992 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 475 of 1983
Judge
Reported inAIR1994Ker36
ActsHindu Law; Evidence Act, 1872 - Sections 115
AppellantP.G. Hariharan and Ors.
RespondentPadaril Deceased Kunhambu's Children Balachandran and Ors.
Appellant Advocate P.G.K. Warrier and; K.T. Sankaran, Advs.
Respondent Advocate V.V. Sidharthan,; K.V. Prakash,; P.N.K. Achan,;
DispositionAppeal allowed
Cases ReferredSahu Madho Das v. Mukand Ram
Excerpt:
family - estoppel - section 115 of indian evidence act, 1872 - plaintiff filed suit for possession of properties on ground of sale deed - defendant took plea of clause contained in family arrangement - defendant himself violated provisions of said clause - defendant cannot enforce it against plaintiffs - plaintiff entitled for possession of properties. - - further, gopalan was also entitled to keep possession and enjoyment of the entire property till his lifetime and on his death the members of the sakha of 1st defendant were entitled to be in possession and enjoyment of the property on the terms and conditions subject to which gopalan was entitled to enjoy the property during his lifetime. pointing out that there is no provision in the compromise indicating the manner in which the.....t.v. ramakrishnan, j.1. the main controversy in this appeal by the plaintiffs centres around a particular clause in a compromise reached between the members of a hindu family and incorporated in the schedule to the decree passed in terms of the said compromise in a suit o.s. no. 9 of 1951 on the file of the subordinate judge's court, ottappalam (hereinafter referred to as 'the earlier suit'). 2. the present suit out of which this appeal arises is a suit for partition. the plaintiffs claimed half share in the plaint schedule property based upon exts. a4 to a6 assignment deeds. the property sought to be partitioned is admittedly item no. 1 in 'c' schedule to the compromise in the earlier suit marked as ext. a1 in the present suit. relying upon the terms in ext. a1 it was contended that.....
Judgment:

T.V. Ramakrishnan, J.

1. The main controversy in this appeal by the plaintiffs centres around a particular clause in a compromise reached between the members of a Hindu family and incorporated in the schedule to the decree passed in terms of the said compromise in a suit O.S. No. 9 of 1951 on the file of the Subordinate Judge's court, Ottappalam (hereinafter referred to as 'the earlier suit').

2. The present suit out of which this appeal arises is a suit for partition. The plaintiffs claimed half share in the plaint schedule property based upon Exts. A4 to A6 assignment deeds. The property sought to be partitioned is admittedly item No. 1 in 'C' schedule to the compromise in the earlier suit marked as Ext. A1 in the present suit. Relying upon the terms in Ext. A1 it was contended that Gopalan, the plaintiff in the earlier suit had half share in the property. The other half share in the property vested with the members of the sakha of 1st defendant in the earlier suit, consisting of defendants 1 and 3 to 10 in that suit. Further, Gopalan was also entitled to keep possession and enjoyment of the entire property till his lifetime and on his death the members of the sakha of 1st defendant were entitled to be in possession and enjoyment of the property on the terms and conditions subject to which Gopalan was entitled to enjoy the property during his lifetime. None of the parties to the compromise were entitled to alienate or encumber the property or to claim partition of the same during their lifetime. Pointing out that there is no provision in the compromise indicating the manner in which the property is to be enjoyed after the lifetime of the life estate holders, it was contended that the terms of the compromise totally prohibiting the parties from alienating or encumbering or partitioning the property is contrary to law and as such not binding on the parties. Gopalan died in 1970. At the time of his death he had no issues. His father and mother were also not alive. As such his half right in the property devolved upon his sister Madhavi alias Malukkutty in accordance with the provisions in the Hindu Succession Act. Madhavi died in 1973. From the legal heirs of Madhavi, plaintiffs had obtained Exts. A4 to A6 sale deeds and as such plaintiffs are entitled to half share in the property. Plaintiffs impleaded defendants 1 to 7 as the existing members of the sakha of 1st defendant in the earlier suit who were declared entitled to half share in the property. It was claimed that the plaintiffs are in joint possession of the property as co-owners. Eighth defendant who is none other than the father of the plaintiffs was impleaded as the lessee of the two buildings situated in the property and the appurtenant land under deceased Gopalan. The 9th defendant was impleaded as a person in whose favour defendants 1 to 7 are known to have executed certain documents creating rights in the property. Alleging that defendants 1 to 7 are illegally collecting the entire income from the property which was estimated at Rs. 3,500/- a prayer for taking an account of the profits realised and recovery of plaintiff share was also made in the plaint. An amount of Rs. 1,000/- was also claimed as damages for committing waste in the property by cutting trees and dismantling buildings.

3. Defendants 1 to 6 filed a joint written statement disputing the claim of the plaintiffs and contending that on the death of Gopalan the entire rights in the plaint schedule property belonged exclusively to the sakha of 1st defendant in the earlier suit as per the terms of the compromise. According to defendants 1 to 6 Gopalan had only a life interest in the plaint schedule property. All the terms and conditions contained in the compromise decree are legal, valid and binding on all parties thereto. Neither the parties to the compromise nor their successors-in-interest can question the validity and binding nature of the terms of the compromise incorporated in the decree. It was further contended that when Gopalan died he had no father, wife or children and as such even if Gopalan had any right in the property it must be deemed to have devolved upon defendants 1 to 7. His sister Madhavi may not be his heir at all. It was further contended that defendants 1 to 7 have assigned all their rights in the plaint schedule property to the 9th defendant. On and after such assignment the 9th defendant is in possession and enjoyment of the property. Regarding 8th defendant, defendants 1 to 6 have contended that he is in possession of the building under a rental arrangement and the lease admitted by the plaintiff in his favour in respect of the building and the land appurtenant thereto is not true. The application for purchase of Jenm right filed by the 8th defendant on the basis that he had obtained a lease of land along with the building from deceased Gopalan has been dismissed. Appeal filed by the 8th defendant against the decision also has been dismissed. The defendants also disputed their liability to account for the profits and to pay damages as claimed in the plaint. It was also contended that the documents based upon which the plaintiff have filed the suit are all documents fraudulently created by the 8th defendant. In the light of the above contentions defendants prayed for a dismissal of the suit.

4. Ninth defendant filed a separate written statement adopting the contentions of defendants 1 to 6.

5. While 7th defendant remained ex parte, 8th defendant filed a separate written statement supporting the plaintiff's contention and praying for a partition of the plaint schedule property into two shares and allowing one such share to the plaintiffs reserving the tenancy right claimed by him in respect of the building and appurtenant land.

6. It may be useful at this stage to refer briefly to the facts of the earlier suit and the relevant terms of the compromise on the basis of which the said suit was decreed. The earlier suit was also one for partition. One Gopalan, son of Padaril Makkunni was the plaintiff in the suit. The plaintiff wanted the property scheduled to the plaint to be partitioned as if they are self acquisitions of his deceased father, Makkunni, Kanhambu, the only son of Kunnhikrishnan, another deceased son of Makkunni was the first defendant. The mother and children of first defendant were defendants 3 to 10. Thus defendants 1 to 7 in the present suit were defendants 4 to 10 in the earlier suit. Though defendants in the ealier suit raised several contentions including a claim for one share each in all the divisible properties treating the properties as joint family properties of Makkunni, plaintiff and defendants, all such contentions were later withdrawn as a result of Ext. A1 compromise reached between the parties in the presence of mediators and the suit itself was decreed on the basis of the said compromise. As per the compromise two items of properties were kept in common including them in a separate schedule called 'C' and subject to certain detailed provisions regarding their right of enjoyment in future. All other properties, both immovable and movable, were partitioned into two shares and allotted separately to plaintiff and the sakha of 1st defendant in that suit. Similarly the existing liabilities were also divided equally. It was also specifically made clear in Clause 3 of the compromise and the decree that the entire properties sought to be partitioned are the self acquisitions of Makkunni and that the plaintiff and the sakha of 1st defendant are entitled to half share each in all such properties. Regarding item No. 1 in 'C' schedule which is the sole item of property sought to be partitioned in the present suit, detailed provisions were made in Clause 10 of the compromise which would read as follows :

(Vernacular matter omitted)

7. Incidentally, it may also be useful to note that in regard to item 2 property kept in common in 'C' schedule it was specifically provided that on the death of 2nd defendant who was authorised to collect the rent from the said item, it is also to be divided into two shares as all other properties were divided.

8. Learned Judge on a consideration of the facts and circumstances of the case found that the compromise decree passed in O.S. No. 9 of 1951 'forms' a family arrangement. Treated as a family arrangement it was held that all the terms and conditions in Ext. A1 including the term contained in Clause 10 are valid and binding on all the parties to it and nobody including strangers claiming through the parties to it can question the validity and binding nature of any of the terms therein. It was further found that even assuming that the restrictive terms contained in Ext.A1 is against any of the provisions contained in Sections 10, 13 and 14 of the Transfer of Property Act, the entire provision does not become invalid. The only result would be that the last of the life estate holders would take the property absolutely as if there is no further restrictions at all. A further finding was recorded to the effect that 'even if the relevant clause, namely, Clause 10 of Ext.A1 is invalid, Madhavi, predecessor of the assignors of the plaintiff, does not get any share in the properties of deceased Gopalan'. As the basis for such a finding, the learned Judge assumed that the subject matter in the earlier suit is Mithakshara co-parcenery property. On the above basis it was found that when Gopalan died in 1970 Madhavi would not be a heir entitled to succeed to the properties left by her brother Gopalan and that his rights in the property would devolve upon the sakha of 1 st defendant in the earlier suit consisting of defendants 1 to 7 by survivorship. On the above basis Madhavi was found to be not entitled to any right in the property. As such the plaintiffs were also found to be not entitled to any right in the property on the basis of Exts. A4 to A6. In the light of the above findings, the suit was dismissed.

9. Learned counsel for the appellants, Shri P.G.K. Warrier, has advanced mainly 4 contentions. First of all it was contended that Ext.A1 is not a family arrangement as has been held by the trial Court. It is an out and out partition. As such the restrictive terms and conditions contained in Clause 10 of the compromise are void and inoperative in law. It was next contended that even if Ext.A1 is a family arrangement it does not contain any term either extinguishing the proprietary half right which Gopalan admittedly had in the property on the date of compromise or conferring such right on the members of the sakha of 1st defendant in the earlier suit either on the execution of the compromise decree or on the death of Gopalan. In the circumstances, each of the members of the sakha of 1st defendant in the earlier suit can have only a life interest over the entire properties subject to the half right in the ownership of the property vested in Gopalan till his death and on his death his heirs or successors-in-in-terest. Thirdly it was contended that even as a famiy arrangement the restriction regarding the right of enjoyment of half of the property created as per Ext. A1 cannot be considered as a valid and enforceable restriction against the legal representatives or successors-in-in-terest of deceased Gopalan. Such restrictive conditions can only be considered as pious wishes of the parties to the compromise and cannot be legally enforced. In any view after the commencement of the Hindu Succession Act (for short 'the Succession Act') and the Kerala Joint Hindu Family System (Abolition) Act, 1976 (for short 'the Abolition Act') such a term in Ext. A1 cannot be sustained as legal and enforceable. On and after the commencement of the Abolition Act, the intention of the parties to the compromise that the property in question should be kept in common for ever and that they should have only a life interest in the properties cannot be legally given effect to. In the circumstances, the respective proprietary rights which the parties had at the time when they entered into the compromise agreeing for an arrangement regarding the enjoyment of the properties in its entirety by creating life interests in their favour, should be allowed to have full effect as if the arrangement has been statutorily put an end to. As such defendants 1 to 7 and their assignors can claim only half rights in the property and cannot now claim the special rights under the compromise to have possession and enjoyment of the property in its entirety relying upon the terms of Ext.A1. Lastly it was contended that even if there are certain equities flowing from Ext.A1 neither defendants 1 to 7 nor the 9th defendant is entitled to take advantage of any such equities in view of the admitted fact that defendants 1 to 7 have wilfully violated the restrictions contained in Ext.A1 and 9th defendant is also a party to such violation. Being parties who have violated the terms of the family arrangement at the first instance they are not entitled to enforce any of the equities arising out of such terms. Even otherwise an arrangement made regarding the right of enjoyment of the property created as part of a family arrangement for the specific purpose of keeping one item of the property in common for ever or for a considerably long time cannot be enforced or given effect to at the instance of a transferee who is not a member of the family and who was not a party to the compromise or family arrangement. It is only in cases where courts find the necessity of enforcing or giving effect to a family arrangement as such in the interest of the family that such terms in a family arrangement will be given effect to.

10. On facts it was submitted that on the death of Gopalan in 1970, his interest in the property devolved solely on his sister Madhavi in the absence of any class I heir and other preferential heirs in class II like father, brother etc. On the death of Madhavi in 1973 her three daughters inherited her rights and after the Abolition Act they had equal rights in the property. Thereafter they have transferred their rights to the plaintiffs as per Exts.A4 to A6. Thus the plaintiffs have half right in the property.

11. It was thus submitted that on legal as well as equitable principles the plaintiffs are entitled to claim out and out partition of their half right in the property and the defendants are precluded from raising any contentions based on the recitals in Ext.A1.

12. For the respondents learned counsel Shri T.R.G. Warrier has contended that Ext.A1 is a family arrangement and no party to Ext.A1 compromise decree can legally challenge any of the terms and conditions in Ext.Al. The intention of the parties at the time when they entered into Ext.Al is the most relevant aspect to be considered while interpreting and understanding the exact scope and effect of the recitals in Ext.A1. At the time of entering into the compromise Gopalan who was the sole member of his sakha wanted to secure to himself specifically a right of enjoyment of the entire property till his lifetime though he had as of right only a half share in the property. For securing a life interest in the entire property without any interference from any other member of the family, Gopalan must be deemed to have given away or waived his proprietary half right in the property in favour of the other part owner, namely, the sakha of 1st defendant in the earlier suit as consideration for obtaining their consent for such an arrangement. According to the learned counsel it is only reasonable and natural to presume so in view of the fact that Gopalan when he entered into the compromise was the sole member of his sakha. It was also contended that at any rate, even if successors-in-interest of Gopalan had obtained any right over the property they cannot claim any right to alienate, encumber or ask for partition of the property on that basis, till the lifetime of all the members of the sakha of first defendant consisting of defendants 1 to 7 in the suit. Even if defendants 1 to 7 have gone against the terms of the compromise, still that may not confer a legally enforceable right on the plaintiffs or their predecessor-in-interest to claim out and out partition of the property and allotment of half share in the property till the lifetime of defendants 1 to 7. The claim of the plaintiffs that on the death of the Gopalan after the commencement of the Succession Act, Madhavi, his sister inherited his rights in the property cannot be sustained in law. Such rights would devolve upon defendants 1 to 7 and not to Madhavi. Till the lifetime of all the members of the sakha of 1st defendant, the 9th defendant is entitled to be in possession and enjoyment of the property even if it is held that Gopalan and on his death the predecessors of plaintiffs had half share in the ownership of the property. In the nature of the life interests created as per Clause 10 of Ext.A1 which are bound in the normal course to stay for a considerably long time, whatever notional right which Gopalan had in the ownership of the property at the time of entering into the compromise must be deemed to have been waived or lost to him. Such right even if any is totally illusory. By the assignments, Exts.A4 to A6 in [he name of plaintiffs, they have not obtained any right in the property and the suit has been filed without any bona fides on an experimental basis at the instance of the father of plaintiffs who was occupying the building therein setting up a claim for tenancy in respect of the building and the appurtenant land.

13. From the admitted facts and circumstances, such as the filing of the earlier suit, the details of the pleadings in the said suit in so far as they are revealed from Ext.A1 decree and the compromise reached between the parties to the earlier suit, it is clear that there was a serious dispute regarding the assets of the family between its members which lead to the filing of the earlier suit for partition. The said dispute was settled by mediation during the pendency of the suit by entering into a compromise evidenced by Ext.A1. There is no case for the parties that it was not a bona fide compromise or that the disputes which were settled by the compromise were not bona fide. The disputes were actually settled by agreeing for an out and out partition of all the assets and liabilities of the family into two equal shares except two items of properties shown in 'C' schedule to the compromise which were agreed to be kept in common subject to certain terms and conditions. On the settlement of the dispute all the contentions raised in the suit were withdrawn and the suit itself was allowed to be disposed of recording the compromise and passing a decree in terms of the compromise. It is also fairly clear from the facts and circumstances of the present suit that the parties stood by the terms of Ext. Al and divided the properties as agreed and enjoyed the two items of properties kept in common in the manner indicated in Ext. Al at least for a fairly long period of about 3 decades. These admitted facts and circumstances are sufficient in my view to hold that Ext. Al compromise decree really represents a family arrangement entered into between all the members of the family of deceased Makkunni who were all parties to the earlier suit with the main intention of putting an end to a serious dispute between them regarding family assets and to bring peace and harmony in the family by avoiding a pending litigation. The contention of the learned counsel for the appellant that it represents an out and out partition cannot in the circumstances be accepted as correct. This is the same conclusion which the learned Judge also has reached on a consideration of the facts and circumstances of the case.

14. In the circumstances, I do not think that it is necessary to enter into a detailed discussion regarding the essential characteristics or attributes of a family arrangement except to refer to the following passage from Halsbury's Laws of England and a few of the decisions of the Supreme Court dealing with the family arrangement elaborately and in a way exhaustively.

'Meaning of family arrangements. A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by comprising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour' (4th Edn. Vol. 16, para 301).

The most important decisions of the Supreme Court are: Ram Charan v. Girja Nandini, AIR 1966 SC 323, Kale v. Dy. Director of Consolidation, AIR 1976 SC 807, M. N. Aryamurthi v. M. L. Subbaraya, AIR 1972 SC 1279 and S. S. Pillai v. K. S. Pillai, AIR 1972 SC 2069. These principles and decisions have been noted recently by a Division Bench of this Court in Thayyullathil Kunhikannan v. Thayullathil Kalliani (1990) 1 Ker LJ 114 : (AIR 1990 Kerala 226).

15. Another important legal effect of the admitted fact of institution of the earlier suit for partition to be noted is that it had effected a severance in the joint status of the family of Makkunni at least from the date of suit if not earlier. There cannot be much controversy on that aspect as it is now well settled that the institution of a suit for partition by a member of a joint family is an unequivocal intimation of his intentions to separate and there consequently is a severance of his joint status from the date when the suit is instituted. The other members of the family have also filed their written statements in the suit. Though the suit was later compromised, it is fairly clear in this case that there cannot be in law a reunion of the members of the separated family since there were five members who were minors at the time when the suit was compromised. The learned author Mulla has in his Book on 'Hindu Law' discussed the law on the point thus :

'.....Since a minor is not competent to contract, it follows, that an agreement to reunite cannot be made by, or on behalf of, a minor'.

The above passage from Mulla was quoted and followed with approval in the decision reported in Balasubramania v. Narayana, AIR 1965 Madras 409.

16. Further, it follows from the fact of severance in status of the members of the family of Makkunni that Gopalan on and after the filing of the earlier suit lived as a separated member and not as a member of any joint Hindu family. The fact that two items of properties were kept in common as per Ext. A1 compromise decree cannot be considered in this case as a circumstance indicating that Gopalan continued to be a member of the joint Hindu family or that the properties were kept in common in its original character with incidence of joint family property. There is no scope for drawing any such inference in this case especially in view of the provisions contained in Clause 3 of the compromise which has in unequivocal terms declared the respective shares which Gopalan on the one hand and the sakha of first defendant in that suit on the other hand is to have in all the properties including the properties kept in common. In the light of the provisions in Clause 3 it has to be held that it is only as separated members Gopalan and the members of the sakha of first defendant in that suit had agreed to keep the properties in 'C' schedule as common subject to the terms and conditions contained in Clause 10 of the compromise. Such a provision would have operated in law as a partition though the property itself was not partitioned, but for the agreement reached between the parties, regarding its enjoyment as provided in Clause 10 of the compromise as has been held in the Privy Council decision reported in Appovier v. Rama Subba Aiyan, (1866) 11 Moo Ind App 75. There was a division of title, though the subject matter of the title itself was not actually divided and was in fact agreed to be kept in common. In this view the assumption made by the learned Judge in paragraph 20 of the judgment under appeal to the effect that the joint nature of the properties in 'C' schedule is sought to be retained is also not correct. Similarly the observations in paragraph 21 to the effect that the parties intended 'to keep the joint nature of the co-parcenary property' is also not correct.

17. In the light of the above conclusions, the view expressed by the learned Judge that on the death of Gopalan his rights if any in the plaint schedule property will devolve on defendants I and 4 to 10 in Ext.A1 by survivorship under Section 6 of the Succces-sion Act and not by succession as provided under the Succession Act cannot be sustained in law. At the time of his death, since Gopalan was a separated member having an ascertained share as declared in Clause 3 of Ext.A1, his rights if any in the property would devolve on his sister alone as conten'ded by the plaintiffs and not on defendants 1 to 7 as contended by the defendants. This will be clear from Section 14 of the Succession Act.

18. Similarly the assumption made by the learned Judge in paragraph 23 of his judgment that 'the subject matter in O.S. No. 9 of 1951 is Mitakshara Co-parcenery property' is also an erroneous assumption made without any factual or legal justification. None of the parties had such a case as is clear from Ext.A1 itself. The properties which were the subject matter of the earlier suit were the self acquisitions of Makkunni. In the circumstances, the further conclusion reached by the learned Judge in that paragraph based upon the said erroneous assumption to the effect that Gopalan's interest will not devolve upon his sister cannot also be sustained in law.

19. Turning to the main controversy in the appeal which as already indicated centres around Clause 10 of Ext.A1, the main points which may have to be considered in the light of the contentions raised in the appeal are; (1) What was the intention of the parties when they incorporated Clause 10 into the crucial compromise? (2) What is the exact scope and effect of the provisions contained in Clause 10 of Ext.A1 on the rights of the parties over the property in question, existing at the time of entering into the compromise? (3) Whether Gopalan had at the time of his death any heritable right in the property and if so whether the plaintiffs have acquired such rights of Gopalan? and (4) Whether the plaintiffs are entitled to any reliefs in the suit on the basis of such right owned by Gopalan and obtained by them as per Exts. A4 to A6?

20. I have already held that Ext.A1 compromise decree represents a family arrangement entered bona fide with the main intention of avoiding a litigation and bringing in peace and amity among the members of the family of Makkunni who were parties to the suit and Ext.A1. The serious question to be considered is how to ascertain the intention of the parties and construe the provisions of the compromise especially Clause 10 which is the centre point of dispute between the parties?

21. In Ponnammal v. R. Srinivasaran-gan, AIR 1956 SC 162 the Supreme Court has treated it as a well settled legal position that the family arrangement had to be judged with reference to the events and circumstances as they existed at the date of that transaction and not what actually emerged at a later date. Similarly the Supreme Court has in Ram Gopal v. Nand Lal, AIR 1951 SC 139 stated the fundamental rule which should govern the courts while ascertaining the intention of the parties as thus (at p, 141, Para 7):

'In construing a document, whether in English or in vernacular, the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed'.

This proposition of law has been followed in the later decisions of the Supreme Court like those reported in M. N. Aryamurthi v. M. L. Subbaraya, AIR 1972 SC 1279 and Navneet Lal v. Gokul, AIR 1976 SC 794.

22. Keeping in mind the above principles regarding construction of document and as-certainment of the intention of the parties to a document, if Ext. A1 is examined, it will be clear that the parties to the document who were till then joint but separated by filing O.S. No. 9 of 1951 wanted to divide all the assets and to keep in common two items of immovable properties described in 'C schedule to Ext. Al compromise. In fact to the extent there is no dispute between the parties. Item No. I is the plaint schedule property which was admittedly the seat of the family house and other appurtenant buildings. Item No. 2 was a row of shop rooms in the possession of tenants. It is pertinent to note that in respect of item No. 2 the parties have clearly agreed that after the death of the 2nd defendant in that suit, the said item is to be partitioned into two shares and one share to be allotted to the plaintiff and the other to the sakha of first defendant in that suit. In regard to item No. 1 the arrangement agreed upon as per Clause 10 was to allow possession and enjoyment of the entire property to be kept first by Gopalan until his death and thereafter by all the members of the sakha of first defendant till their respective lives. During the lifetime of the parties neither Gopalan nor any of the members of the sakha of 1st defendant was entitled to alienate or encumber the property or claim partition thereof. It is of prime importance to note that the prohibition against creation of encumbrances, alienation and claiming partition is to operate not only till the lifetime of Gopalan but also till the lifetime of all the members of the sakha of 1st defendant. In the circumstances, it is difficult to accept the contention of the learned counsel for the respondents that it is to ensure an interference free life interest to Gopalan that the restriction regarding alienation, partition etc. was provided for. If that was the intention there was no necessity to impose any restriction beyond the lifetime of Gopalan. On the other hand, the express prohibition imposed till the lifetime of all the parties to the document would definitely indicate the intention of the parties to keep the property in common for ever or at least for a considerably long period as contended by the plaintiffs. This is only in accord with the natural tendency of members of a Hindu family especially with reference to the family house and the seat of the same. The intention to keep item No. 1 as a common property without giving anybody a right of alienation or partition till their lifetime is further clear from the difference in the arrangement made by the parties with reference to the two items of properties simultaneously agreed to be kept in common at the time of entering into the compromise. Thus in regard to item No. 2 they have in unambiguous terms agreed to an out and out partition immediately after the death of the 2nd defendant in whose favour a life interest was created as per the compromise. It was only for the purpose of providing maintenance to a member that property was kept in common. In contrast, in regard to item No. 1 they never entered into any such agreement to have an out and out partition or to provide specifically that on the death of Gopalan the members of the sakha of first defendant would enjoy the property as absolute owners. Thus they have, in my view, deliberately and specifically made a very glaring difference in treatment between the two items of properties agreed to be kept in common in the matter of future enjoyment. They did not make any provision in regard to the enjoyment of item No. 1 in 'C' schedule after the termination of the life interests created in favour of the parties to the compromise. It is again important to note in this connection that the compromise is one reached between the separated members of a family and they have clearly declared in the compromise itself that half right in the property belongs to Gopalan and the other half belongs to the sakha of 1st defendant in the earlier suit. Further it is also relevant to note that there is no provision in Ext. Al specifically providing for extinguishment or transfer of the half right which Gopalan had in the property in favour of one or other of the parties to the compromise either individually or jointly in any one of the known modes of extinguishment or transfer of right in immovable properties.

23. The learned counsel for the respondents has strongly contended that Gopalan being the sole member of his sakha must be deemed to have waived or given up his half right in the property as consideration for getting exclusive right of enjoyment of the entire extent of the property as provided in Clause 10 of the compromise. The conduct of Gopalan should be treated as sufficient to hold that he has waived his exclusive right over the half share in the property and was satisfied with the life interest he got over the entire property under Clause 10 of the compromise. It is difficult to accept the above contention put forward by the learned counsel for the respondents. The parties have incorporated specifically a provision in Clause 10 prohibiting alienation, partition and creation of encumbrance not only till the lifetime of Gopalan but also till the lifetime of all the members of the sakha of 1 st defendant including several minors. If the purpose of imposing the prohibition was only to avoid interference in the enjoyment of life interest by Gopalan, there was no necessity to make such a total prohibition which extends to the lives of several people even after the lifetime of Gopalan. On the other hand if the intention was to constitute the sakha of 1 st defendant as the absolute owners of the property after the death of Gopalan such a provision would not have been there. Instead a specific provision to that effect could have been incorporated in the compromise easily. In the absence of any express or implied term in the compromise putting an end to the right of Gopalan or constituting the members of the sakha of first defendant as exclusive owners of the property on the death of Gopalan there is no justification to assume or presume that Gopalan has given up or waived his half rights in the property in favour of the other part owner, namely, the sakha of first defendant. The fact that Gopalan was the sole member of his sakha is no ground to draw any such inference as contended by the learned counsel for the respondents. Moreover he was a married person whose wife was also living at the time when the compromise was entered into.

24. On a careful consideration of the relevant facts and circumstances available on record and in the background of which Ext. Al compromise was entered into and the recitals contained in the compromise itself, I am clear in my mind that as far as the plaint schedule property is concerned the parties who were separated members of a Hindu family have really intended to keep the same as a common property over which Gopalan and the sakha of 1st defendant in that suit had equal rights as declared therein and have made only an arrangement for enjoyment of the same till their lifetime as per Clause 10 of the compromise. The restrictions regarding alienation, creation of encumbrances and claiming of partition imposed against all the parties to the compromise would clearly indicate the intention of the parties to keep alive the respective rights of the parties in tact. It would also indicate that what is provided in Clause 10 is only an arrangement regarding enjoyment of the said property in future up to a certain period, namely, till the lifetime of all the then living members of the sakha of 1st defendant in that suit. There is nothing to indicate that the existing ownership right over the properties is put an end to or modified in any manner except to subject it to a right of possession and enjoyment by one or other of the parties during their lifetime. There is nothing in Ext. A1 to hold that the proprietary right which Gopalan had over the plaint schedule property, was put an end to and he retained only a life interest as per the compromise, as contended by the defendants. If that be so, it would follow that even as per Ext. A1 Gopalan retained his half right in the property over and above the right he obtained to have the enjoyment of the entire extent of the property till his lifetime subject to the restrictions contained in Clause 10 of Ext. Al. It was in exercise of such right he got under Clause 10, he was in possession and enjoyment of the entire property till his lifetime. There is no justification to hold that such proprietary right burdened with life interest in favour of certain number of persons is either illusory or that it is not a heritable right as contended by the respondents. Of course, such right will be subject to the special rights and liabilities created by the provision contained in Clause 10 so long as the family arrangement meant only for enjoyment stands or remains enforceable.

25. In the light of the above conclusions reached by me, it has to be held that Gopalan was having half share in the property subject to the terms and conditions contained in Clause 10 of Ext. Al and such right has devolved on his death upon his sister who was the sole heir at the time when Gopalan died. If that be so, on the death of his sister in 1973 her right would certainly devolve upon her three daughters who have assigned their respective shares in favour of the three plaintiffs in the suit after the coming into force of the Abolition Act. In this view, it has to be held that the plaintiffs have become part owners of the property entitled to a half share therein subject to the restrictions contained in Clause 10 of Ext. Al.

26. The further question to be considered is whether the restrictive terms in Clause 10 of Ext.Al would preclude the plaintiffs from claiming partition and separate allotment of half share in the plaint schedule property as the successors-in-interest of Gopalan who was a party to Ext. A1 and as such bound by it. There cannot be any doubt that if Clause 10 of Ext. A1 is enforceable against the plaintiffs at the instance of either defendants I to 7 or 9 or jointly by all, it will certainly preclude the plaintiffs from claiming partition of the property till the lifetime of defendants 1 to 7 and the suit is liable to be dismissed on that ground. However, the learned counsel for the appellants has contended that in the light of the various developments which took place subsequent to Ext. Al affecting the status and right of the parties with reference to the property in question, Clause 10 of Ext.A1 may not now be enforceable against the plaintiffs by the defendants and as such there is no obstacle for them in claiming partition in this suit. It was also submitted that in the changed circumstances there is absolutely no scope or necessity to keep alive or enforce the arrangement agreed to as per Clause 10 of Ext. Al and if enforced it will lead to most unjust and inequitable results. The courts will not enforce such restrictive terms in a family arrangement unless such enforcement is absolutely necessary to uphold or maintain a family arrangement in the interest of the members of the family for whose benefit it was entered into. In the circumstances, it was submitted that the rights acquired by the plaintiffs would get freed from the restrictions imposed by the terms of Clause 10 and would become full fledged rights on the basis of which a suit for partition of the property can be maintained successfully.

27. In answer to the above contentions, the learned counsel for the respondents has submitted that every term of the family arrangement including Clause 10 of Ext, Al are binding on parties including Gopalan and as such being successors-in-interest of Gopalan plaintiffs are also bound by the said provisions. Having enjoyed the benefit of the arrangement agreed to as per Clause 10. Gopalan was estopped from challenging the validity and binding nature of Clause 10. The plaintiffs being successors-in-interest of Gopalan, they are also estopped from challenging the validity and binding nature of the terms contained in Clause 10. Whatever may be the subsequent developments and consequent changes in the circumstances, Clause 10 of Ext. A1 will preclude the plaintiffs from claiming partition of the property at least till the lifetimes of all the defendants (defendants 1 to 7) and as such the suit now brought is liable to be dismissed as not maintainable.

28. Before considering the merits of the rival contentions it is necessary to refer briefly to the various developments which according to the learned counsel for the appellants have taken place subsequent to Ext. Al and the changes in the circumstances brought about by such subsequent developments. It was submitted that in 1976 the Abolition Act was brought into force putting an end to the system of joint family and declaring that the members of the family as on the date of commencement of the Abolition Act, shall thereafter hold the properties as tenants in common as if a partition had taken place on the date of commencement of the Abolition Act, namely, 1-12-1976. On and after such commencement of the Abolition Act the existence of the family for the benefit of which the property in question was intended to be kept in common has been put an end to by operation of the Abolition Act. A further partition should be deemed to have taken place between the members of the sakha of 1 st defendant in the earlier suit as on 1-12-1976. No family as intended by the parties on the date of compromise could be in existence in law after the termination of life estates created in favour of the sakha for whom the property in question was intended to be preserved as per Clause 10 of Ext. Al. Gopalan died in the year 1970 and the members of the sakha of 1st defendant in the earlier suit had taken possession of the entire property apparently as provided in Clause 10 of Ext. Al. Thereafter on 17-10-1980 the sakha of 1st defendant in the earlier suit had assigned the property to the 9th defendant as per Ext. B3 and put her in possession of the property asserting that they have obtained full rights in the property on and after the death of Gopalan. Ninth defendant is a total stranger to the family of Makkunni. So also the plaintiffs are again total strangers to the family of Makkunni who have obtained whatever rights deceased Gopalan was having on the date of his death in the property. This in short are the subsequent developments and there cannot be any dispute that as a matter of fact the above developments have occurred. The dispute is only about the alleged effects of the above developments on the contained enforceability of the provisions in Clause 10 of Ext. Al.

29. In the light of the conclusions already reached by me to the effect that the arrangement agreed to as per Clause 10 of Ext. Al is only an arrangement for enjoyment of the property without affecting the ownership right over the property and that the intention of the parties was to keep the property in common for ever or at least for a considerably long time for the benefit of the members of the family of Makkunni, I am inclined to take the view that in the changed circumstances, the provisions in Clause 10 may not be enforceable against the plaintiffs at the instance of the defendants so as to disentitle them from claiming partition and separation of their half share in the property as full fledged co-owners or part owners of the property.

30. First of all, Clause 10 being a restrictive term in a family arrangement intended to provide only for an arrangement regarding enjoyment of the property in question the provision can be enforced only by the members of the family and that too only in support of the arrangement agreed to as per the said term or provision in Ext.Al. By asserting absolute ownership rights over the entire property and selling the property to the 9th defendant as per Ext. A3, defendants 1 to 7 have gone against or violated knowingly the specific terms of Clause 10 and as such cannot contend that the provisions in that Clause has to be enforced strictly against the plaintiffs or their predecessors-in-interest. In fact by their conduct in asserting full rights over the property selling it out rightly to a total stranger they have actually given the go by or to put an end to the arrangement for enjoyment agreed to as per Clause 10 of Ext. A1. The courts will enforce such restrictive terms in a family arrangement subjecting ownership rights to restrictions regarding alienation, partition etc. only for the purpose of maintaining a family arrangement and not in favour of a party who has knowingly violated the provisions of the family arrangement and has in fact unsettled it and wanted to maintain the resultant position by enforcing the restrictive provisions in the family arrangement on the other party or parties or their successors-in-interest. Such a view alone is justifiable in the circumstances of the case will be clear from the following observations of the Supreme Court in the decision reported in Kale v. Dy. Director of Consolidation, AIR 1976 SC 807 made after a detailed consideration of the principles upon which courts lean strongly in favour of family 'arrangements and sustain such restrictive provisions in family arrangement (Paras 18, 19).

'In a recent decision of this Court in S. Shanmugam Pillai v. K. Shanmugam Pillai, (1973) 2 SCC 312 : AIR 1972 SC 2069 the entire case law was discussed and this Court observed as follows:

'If in the interest of the family properties or family peace the close relations had settled their disputes, amicably, this court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.

X X X X X Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das v. Mukand Ram, (1955) 2 SCR 22 : AIR 1955 SC 481 -- the courts lean strongly 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. As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.

x x x x x Thus it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds'

It is to be noted in this connection that the Supreme Court in the above decision (Kale's case) (AIR 1976 SC 807) has quoted with approval the statement of law regarding family arrangement by Halsbury thus :

'Principles governing family arrangements. Family arrangements are governed by principles which are not applicable to dealings between strangers. When deciding the rights of parties under a family arrangement or a claim to upset such an arrangement, the court considers what in the broadest view of the matter is most in the interest of the family and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.....'

(4th edn. Vol. 16 para 304)

None of the considerations for which courts generally lean in favour of family arrangements are present in this case and this is not a case where any of the parties wanted to sustain or uphold a family arrangement as agreed to in defence of a claim to unsettle it.

The restrictive provision in Clause 10 is being sought to be enforced in this case not for the purpose of supporting any family arrangement but only for perpetuating the result of violation of the arrangement made as per the very Clause relied upon by the defendants. It is also not for protecting or safeguarding only the legitimate interests claimed under the family arrangement by the defendants 1 to 7 that they wanted to enforce the restrictive terms in Clause 10 against the plaintiffs. In this view I find that defendants 1 to 7 cannot enforce in this suit the terms contained in Clause 10 of Ext. Al against the plaintiffs in the light of the changed circumstances of the case. In the circumstances 9th defendant who is a transferee from defendants 1 to 7 is also not entitled to take advantage of the provisions in Clause 10 to non suite the plaintiffs for the added reason that she is a total stranger to the family.

31. In the light of the above findings, the contention of the learned counsel for the respondents that deceased Gopalan having taken a benefit under Clause 10 of Ext. A1, was estopped from going against the said provision or resiling from the effect of the said provision and as such plaintiffs are also at any rate estopped from claiming partition at least till the lifetime of defendants 1 to 7 and the suit is liable to be dismissed on that ground, cannot also be accepted in this case. In my view such a plea of estoppal can he invoked only in support of or to maintain a family arrangement where the court finds that the parties should not be allowed to resile from a particular arrangement under which they have taken some benefit. If for some grounds which are not 'frivolous or untenable' the court finds that a party is entitled to re-open the arrangement or establishes that the continued enforcement of the family arrangement is wholly impracticable, unnecessary and unjust in the changed circumstances of the case, as has been established in this case, there is no question of applying the equitable principle of estoppel and holding any of the parties to such restrictive provisions in a family arrangement. This is especially so in the case of family arrangements intended to have application only for a limited time or purpose in contrast to family arrangements entered into for the purpose of effecting out and out partition, gift etc. The passages already from the Supreme Court decision (Kale's case) (AIR 1976 SC 807) already quoted by me in paragraph 30 above especially those underlined by me would in my view substantially justify the view which I have taken in this regard.

32. In any case, the courts will not accept such a plea of estoppel put forward in defence by a party who has himself gone against the very same provisions which he wants the court to enforce strictly against the other party or parties. If Gopalan and his successors-in-interest have violated the provisions in Clause 10 of Ext. A1, defendants 1 to 7 and 9 have also violated such provisions equally or more flagrantly and as such it may be a case where the well known principle propounded by Lord Coke, namely, that 'estoppel against estoppel setteth the matter at large' can legitimately be applied to free the parties from the restrictions they or their predecessors-in-interest have imposed as per the restrictive provisions in question on the absolute proprietary right the parties to the family arrangement had at the relevant time in the subject matter of the arrangement. I would therefore , reject the said contention also.

33. In the light of the above discussion, I would hold in reversal of the view taken by the court below that the plaintiffs are entitled to claim partition and separation of their half share in the plaint schedule property on the basis of Ext. A4 to A 6 assignment deeds.

34. In the light of the provisions in Clause 10 of Ext. Al, I find that the plaintiffs are entitled to get their share of profits only from the date of the suit and not for any period prior to the institution of the suit.

35. The plaintiffs have not adduced any reliable material to establish that any of the contesting defendants have committed waste in the property. Hence the claim for damages is disallowed.

36. The learned counsel for the 8th defendant has not pressed before me any of the contentions put forward by the 8th defendant in his written statement. Accordingly, I hold that 8th defendant is not entitled to get any reliefs in the suit.

37. In the result the decree passed by the court below dismissing the suit is set aside, Plaintiffs are declared entitled to have half share in the plaint schedule property. They will also be entitled to get their proportionate share of profits from the 9th defendant. The quantum of profits is directed to be determined in the final decree proceedings. Accordingly there will be a preliminary decree for partition of the plaint schedule property into two equal shares and allotment of one such share to the plaintiffs jointly. There will be a further direction that the plaintiffs are entitled to realise from the 9th defendant, their proportionate share of profits from the date of suit on taking an account of the profits from the property in the final decree proceedings. Costs in the suit shall come out of the estate. The plaintiffs may apply for passing a final decree in terms of the decree passed hereby.

The appeal is accordingly allowed. In the circumstances of the case, I would direct the parties to bear their respective costs.


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