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Seethalakshmi Ammal and anr. Vs. Minor S. Ramesham (Rameshan) Adopted S/O. Alwar Alias Rukmani Ammal and Srinivasa Iyenger Through Next Friend and Property Guardian C.K.S. Ranganathan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1976)2MLJ30
AppellantSeethalakshmi Ammal and anr.
RespondentMinor S. Ramesham (Rameshan) Adopted S/O. Alwar Alias Rukmani Ammal and Srinivasa Iyenger Through Ne
Cases ReferredKrishna Beharilal v. Gulabchand
Excerpt:
- s. natarajan, j.1. this is an appeal by defendants 2 and 3 against the judgment of the additional district judge of madurai in a.s. no. 390 of 1972, wherein he affirmed the judgment of the trial court in all respects except as regards the declaration of title and delivery of possession of item no. 24 of the suit properties. the plaintiff has filed a memorandum of cross objections to get relief in respect of item no. 24 also.2. the genesis of this unfortunate litigation between close relations was the posthumous adoption of the plaintiff as the son of the srinivasa iyengar who died on 6th september, 1961. srinivasa iyengar had no surviving male issue and had only three daughters of whom, the third respondent was the second, the other two being the appellants herein. it would appear that.....
Judgment:

S. Natarajan, J.

1. This is an appeal by defendants 2 and 3 against the judgment of the Additional District Judge of Madurai in A.S. No. 390 of 1972, wherein he affirmed the judgment of the trial Court in all respects except as regards the declaration of title and delivery of possession of item No. 24 of the suit properties. The plaintiff has filed a memorandum of cross objections to get relief in respect of item No. 24 also.

2. The genesis of this unfortunate litigation between close relations was the posthumous adoption of the plaintiff as the son of the Srinivasa Iyengar who died on 6th September, 1961. Srinivasa Iyengar had no surviving male issue and had only three daughters of whom, the third respondent was the second, the other two being the appellants herein. It would appear that Srinivasa Iyengar was desirous of adopting the plaintiff even during his lifetime, but the parents of the plaintiff were initially reluctant to give the boy in adoption, for at that time, they had no other male issue besides the plaintiff. However, they were blessed with a second boy on 9th December, 1960 and thereafter they were willing to give the plaintiff in adoption, but due to the intervening illness of Srinivasa Iyengar, the ceremony of adoption was postponed and eventually remained unaccomplished due to the death of Srinivasa Iyengar. It was thereafter i.e., on the thirteenth day of the funeral ceremony of Srinivasa lyengar, when Subhasweekarnam was performed, Srinivasa Iyengar's wife who was the first defendant in the suit and who died during the pendency of the suit, in deference to the wishes of her husband, took the plaintiff in adoption on 18th September, 1961. The adoption was done in accordance with Sastraic rites and rituals and, in addition a registered deed of adoption, Exhibit B-1 was also brought forth. The adoption ceremony was followed by a family arrangement which resulted in certain properties of Srinivasa Iyengar being allotted to the plaintiff the allotment however, being burdened with the obligation that the plaintiff should discharge certain debts, secured and unsecured, incurred by Srinivasa Iyengar. The remaining properties of Srinivasa lyengar as Well as the properties belonging to his wife were divided equally among his three daughters, but during the lifetime of Srinivasa Iyengar's wife, she was permitted to enjoy the income from those properties. Like the adoption itself, the family arrangement was also reduced to writing and a registered instrument, Exhibit B-2, was also brought into existence on 18tft September, 1961.

3. For about eight or nine years, things went on smoothly, and the plaintiff was recognised and treated as the adopted son of Srinivasa Iyengar. The family arrangement was given effect to and there was mutation of names in the registers in respect of the items of properties allotted to the plaintiff and others, and the debts of Srinivasa Iyengar were also being discharged in accordance with the family arrangement. Misunderstandings, however, seem to have cropped up in or about the year 1970, with the result that the appellants and their mother went back upon the adoption and the family arrangement and began to assert title in themselves on the items of properties which had been given to the plaintiff in the family arrangement. They purported to effect a fresh partition among themselves and the plaintiff's mother and it was at this stage of events, the plaintiff, represented by his ratural father, who obtained permission from Court to act as the personal and property guardian of the plaintiff, filed the suit in O.S. No. 295 of 1970 on the file of the Second Additional Subordinate Judge, Madurai for reliefs of declaration of title to plaint Schedule I properties, delivery of possession of the same and for accounts and mesne profits. ,

4. The case of the plaintiff was that he had been validly adopted as the son of Srinivasa Iyengar that in pursuance of the adoption he was allotted the Schedule I properties at the family arrangement which followed the adoption and that the attempt of defendants 1 to 3 to nullify the settled state of affairs was morally and legally untenable. To the suit were impleaded, as pro forma parties, defendants 4 and 5 the fourth defendant being a lessee in whose favour the contesting defendants had created a lease and the fifth defendant being the mother of the plaintiff himself.

5. Defendants 1 to 3, who were the principal contestants repudiated the adopttion of the plaintiff as Srinivasa Iyengar's son and further contended that even if any ceremony of adoption had been performed, it was invalid and inoperative. With regard to the family arrangement their stand was that there was no such arrangement at all and the deed of family arrangement was of no consequence as it had been brought about by the plaintiff's natural father, by fraud, deception and undue influence. Certain pleas based on legal grounds were also projected, to assail the family arrangement. These were rested on the ground that the plaintiff was not a member of the family and had no semblance of a right to be included in the partition of the properties of Srinivasa Iyengar, that in any event, the properties of Srinivasa Iyengar had already vested in his wife and daughters prior to the alleged ceremony of adoption and as such, there cannot be any divesting of vested properties.

6. The trial Court, on an analysis of the evidence, oral and documentary, adduced in the case, came to the conclusion that the adoption of the plaintiff as the son of Srinivasa Iyengar was not only true but was also valid are further held that the family arrangement was equally a true and 'binding transaction and consequently, the plaintiff was entitled to the reliefs asked for in the suit. In the appeal preferred by the defendants 2 and 3., the learned, Additional District Judge of Madurai concurred with the findings and conclusion of the trial Court and affirmed the judgment appealed against but due to a misconception that the plaint item No. 24 was not included in the items of tend allotted to the plaintiff, he allowed the appeal only in so far as that item is concerned. It is against the affirming judgment of the lower appellate Court, the appellants have now come forward with this second appeal.

7. Mr. G. Ramaswami, learned Counsel for the appellants, attempted to assail the findings of the Courts below on the question of adoption, but I do not think the factum or validity of the adoption is open to question any longer. Both the Courts below have on an analysis and appreciation of the evidence, clearly found that the plaintiff was undoubtedly adopted as the son of Srinivasa Iyengar on 18th September, i961 and the adoption satisfies, the requirements of law in all respects. Against the concurrent finding of the Courts below, which is one on facts, this Court will not interfere unless it is established that the finding is perverse or that it is vitiated or any error of law. There is overwhelming evidence in the case to show that the plaintiff was adopted by the first defendant as the son of Srinivasa Iyengar himself and had the apoproval of all the members of the family. The adoption itself is evidenced by a registered deed, Exihibit B-1, which among others, has been signed by defendants 1 to 3 and the third defendant's husband who has been examined as D.W. 4 photos, Exhibits A-17 to A-19, taken at the time of the adoption ceremony also, lend credence to the plaintiff's case. The plaintiff's name had been changed, from that of Varadaraj alias Ramesh to that of Ramaseshan, pursuant to the adoption. In suits instituted by her as well as in suits instituted against her by third parties, the first defendant had acted as the adoptive mother and guardian of the plaintiff, Even so, with reference to promissory notes executed after the adoption ceremony, the defendant had pourported execute the documents as the adoptive mother and guardian of the plaintiff. The plaintiff's, name had been substituted as the successor to Srinivasa Iyengar for performance of Mandakapadi for Kalla Azhagar. The plaintiff had been admitted, to school by the first defendant and in the application form she had described herself as the mother and guardian of the plaintiff. In the light of such preponderant evidence, the appellants do not nave the ghost of a chance to contend that the finding of the Courts below that the adoption was true and valid is a perverse one. Mr. G. Rajnaswami is not also able to show that the adoption is not in accordance with law in any manner. Consequently the scope of the appeal will have to be restricted only to the attack on the family arrangement pleaded by the plaintiff.

8. With regard to the family arrangement, the appellants, besides, raising legal objections, also raised a plea before the Courts below that no such arrangement asset out by the plaintiff was Wed among the members of the family and Exhibit B-2 itself had been brought into existence by fraud and deception. They contended that the plaintiff's natural father was a scheming man and he had obtained the Signatures of defendants 1 to 3 in Exhibit B-2 by misrepresenting that such a document was required for the management of the properties. This contention was replled by the trial court, and rightly too, for there are numerous factors to show that Exhibit B-2 had been executed by the parties there to and attested by witnesses including the husband of the third defendant with full knowledge of the contents thereof. In any event, the finding in this behalf by the Courts below is one of fact and cannot therefore be traversed once again in second appeal. Fully aware of this position, Mr. G. Ramaswami's vigorous attempt in the appeal was to nullify the family arrangement on several legal grounds.

9. The first contention of Mr. G. Ramaswami was that, however, liberally and sympathetically Courts may construe a family arrangement yet the arrangment should satisfy certain basic tests and reflect certain essential features. Dilating his arguments on this aspect, the learned Counsel would contend that a party to a family arrangement must not only show that he was a member of the family, but that he had some antecedent title or at least a semblance of title in the properties covered by the family arrangement and there must be the possibility of a dispute, however remote it may be, between the parties to the arrangement in respect of the properties of the family. According to the appellant's counsel, some antecedence of title is an indispensable prerequisite before ever a party could be admitted to a family arrangement and given property. On the basis of this stand, it was pointed out that though the plaintiff may have become a member of the family of Srinivasa Iyengar by virtue of the adoption, he can by no stretch of imagination be deemed to have had any antecedent title in, or a semblance of right to the properties of Srinivasa Iyengar and therefore he cannot lay claim to any property on the basis of the family arrangement. To show that the adoption, by itself, will not entitle the plaintiff to claim a share in the properties of Srinivasa Iyengar, the appellants place reliance on Section 12 of the Hindu Adoptions and Maintenance Act (LXXVIII of 1956), which lays down that an adopted child shall be deemed to be the child of his adoptive parents only with effect from the date of the adoption. It may be recalled that the plaintiff's adoption was done only thirteen days after the death of Srinivasa Iyengar and consequently, the plaintiff can be held to have become a member of the adoptive family only from the date of adoption, viz., 18th September, 1961.Section 12(e) of the Act referred to above lays down that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. It therefore follows that the estate of Srinivasa Iyengar Which on his death, vested immediately on his widow and daughters, cannot be divested by the plaintiff solely by reason no his adoption. The appellants; would therefore contend that, not withstanding the adoption of the plaintiff, he; was no better than a stranger and therefore was not entitled to claim right's in the properties of the family under the guise of a family arrangement, and, if at all any family property is to be given to him, it can only be by means of a regular conveyance deed as known to law.

10. Another ground of attack on Exhibit B-2 Was that at the time it came into existence, there were no disputes which required settlement among the members of the family and in the absence of a dispute there can be to valid family arrangement. Mr. Ramaswami pointed out that the execution of Exhibit B-2 was in close succession to the execution of Exhibit B-1 and in the fractional interregnum between the execution of the two documents, a real and bona fide dispute among the family members could not have cropped up to give rise to a family arrangement; In support of these propositions, Mr. Ramaswami placed reliance on the following decisions. The Supreme Court in Sahu Madho Das and Ors. v. Pandit Mukand Ram and Anr. : AIR1955SC481 observed as follows:

It is well settled that a compromiseor family arrangement is based-on the assumption that there is an antecedent, title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in this case to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the family arrangement had always re-sided in him or her so far as the property falling to his share or her share is concerned and therefore, no conveyance is, necessary. But in our opinin, 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 to 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 claims 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 were assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present..But is that event, the formalities of law about the passing of title by transfer would have to be observed and now, either registration or twelve years' adverse possession would be necessary.

This ratio is heavily relied on to contend that since the plaintiff had no semblance of an antecedent title to the properties in question, any transfer of properties to him under the projected family, arrangement can be effected only by means of a gift or sale, and in either event, it must be evidenced by a registered conveyance deed. Reliance was also placed on Ramayya v. Lakshmayya where it was held that where it had not been shown that a party to an arrangement had any competing title of his own in respect of the properties in dispute, there can be no basis for a family settlement between the parties. Yet another case cited in this behalf in Kisto Chandra v. Anila Bala Dasi : AIR1968Pat487 , which, following the decision in Sahu Mado Das and Ors. v. Pandit Makand Ram and Anr. : AIR1955SC481 , held that a family arrangement is based on the assumption that there is an antecedent title of some sort In the parties. It further held that since the basis of family settlement is the existence of doubtful claims or semblance of claims of the; parties concerned in respect of the properties in., dispute, the anticipated dispute, must be real and not imaginary. It was also observed therein, that a transaction cannot be. a family settlement simply because a party, chose to call it so. On the assumption. that Exhibit B-2, in so far as it relates to the plaintiff can only be construed as: a. conveyance deed, and not a compromise deed among the family, members having, right over the properties dealt with under the arrangement the appellants 'counsel' relied on. Immudipattam Thimgnana S.O. Kondama Naik v. Peria Dorasami (1901) 28 I.A. 46 : I.L.R. 24 Mad. 377 where the Privy Council held that an arzi addressed and a statement given in pursuance thereof to the Collector for effecting a transfer of the mortgaged property by mutation of names in the registers in favour of the mortgage cannot be construed as document relating to a family arrangement for the mortgage was not a member of the family and any transfer of, property to the mortgage could only be effected in accordance with the provision of the Transfer of Property Act. My attenion was also invited to Durgaiah V. Commissioner of Gift-tax (1972) 1 A. W.R. 206, where a settlement deed executed by a father m favour of his children was: refused recognition as a family arrangement on the ground that it did not reflect an agreement arrived at between, members of a joint family who wished to-avoid any plausible or possible disputes-and wanted to securepeace and harmony amongst the members as well as claims in relation to properties, but on the other hand, the document was nothing, more than a simple settlement or gift executed' by the father in respect of his self-acquired properties in favour of his children out. of love and affection. Closely linked with this argument is the futher contention that the plaintiff himself was not an eo nomine party to Exhibit B-2 and on that ground too, he cannot lay claim to the suit properties on the basis of Exhibit B-2.

11. Before dealing with the contention of Mr. G. Ramaswami, it would be useful to refer to the form and content of Exhibit B-2. As already stated, it is a registered instrument-and is styled as a family arrangement settlement deed and the properties dealt with thereunder have been valued at Rs. 16,000. Srinivasa Iyengar's widow and daughters, viz., defendants 1 to 3 and 5, are the parties to the instrument. It makes reference to the death of Srinivasa Iyengar on 6th September, 1961 and his having left 10 acres of wet land, a vacant site, a terraced house, cash of Rs. 10,000, a share in a coconut tope and lay way or liability a secured debt for Rs. 4,000. and promissory note debts for Rs. 18,000. Reference is then made to the taking in adoption of the plaintiff. The allotment of properties to the plaintiff and the parties to the document is in the following words.

From this it may be seen that 7 acres of wet lands and the share in the Kondamari coconut tope were set apart for the adopted son of Srinivasa Iyengar viz., the plaintiff and he was Also responsible for the discharge of that secured and unsecured debts incurred by Srinivasa Iyengar. The remaining 3 acres of wet lands of Srinivasa Iyengar and 'the 3 acres of land his widow was entitled to were to vest in the three daughters but be enjoyed by the widow during her life-time without power of alienation and thereafter taken by the three daughters in accordance with the A, B and C Schedules.

12. Mr. Srisailam, learned Counsel for the plaintiff-respondent refuted every one of the contentions of the appellant's counsel and urged that Exhibit B-2 satisfied all the requirements of law for being construed as a family arrangement and the attempt of the appellants to get over the document was futile. While he conceded that a stranger cannot be admitted to any benefit under a family arrangement, Mr. Srisailam pointed out that after what all had happened, it would be nothing but monstrous for the appellants to brand the adopted son of Srinivasa Iyengar as a stranger or a third party to the family and not entitled to rely upon the family arrangement for claiming title to the suit properties. Various decisions were cited by the learned Counsel to fortify his contention that for recognising a family arrangement a party need not establish that he had an undisputed and enforceable right over some or all item of the family properties, that a dispute in praesenti existed, prior to the family arrangement and that Section 12 of the Hindu Adoptions and Maintenance Act, would have no application to the facts of the case because the plaintiff's claim to the suit properties was not founded, on, the adoption simpliciter but on the further fact that there was a family arrangement among the parties to the litigation.

13. It is by now well established that al family arrangement can be effected between members of the family for a variety of reasons and not necessarily for settlement of disputes between them regarding the family properties. Likewise, it is no more open to anyone to contend that there should be a conflict of legal claims before a 'family arrangement can be effected. In support of the former proposition, I may only refer to some of the authorities cited by Mr. Srisailam. Subba Rao J. (as he then was), pointed out in Pullaiah v. Narasimhan : AIR1966SC1836 that members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into a family arrangement. In Shambhu Prasad v. Phool Ktunari : AIR1971SC1337 , it was pointed out that a family arrangement has to be considered as a whole for ascertaining whether it was made to allay disputes, existing or apprehended, in the interest of harmony in the family or the preservation of property. In fact the Courts have gone so far as to say that even affection towards one of the members to a family arrangement may be a justiiying factor for giving properties to him under the arrangement. This may be keen from the following expression of the Supreme Court in Rant Charan v. Cirija Nandini : [1965]3SCR841 at 329. 'All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a 5emblan.ee of a claim on some other ground as, say, affection'. In support of the second propossition the following decisidns can be usefully referred to. In Pullaiah v. Narasimhan : AIR1966SC1836 and Skambku Prasad v. Phool Kamari : AIR1971SC1337 , it was held as follows:

Although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements; it is not necessarily so. Even, bona fide disputes, present and possible, which may not involve legal claims, would be sufficient.

The passage in Sahu Madho, Das and Ors. v. Pandit Mukand Ram and Anr. : AIR1955SC481 , referring 10 a family arrangement proceeding on the assumption that there is an antecedent title of some sort in the parties and the need for a registered conveyance deed where parties to a family arrangement acknowledge the sole title of one of the parties to the family arrangement and take such property from him as assigned to them as gift or conveyance, has been explained in Tek Bahadur v. Debi Singh : [1965]3SCR841 in the following words:

These observations apply to a case where one of the parties tlaimed the entire property and such claim was admitted by the others and the others obtained property from the recognised owner by way of gift or by way of conveyance. In the context of the document setting these facts this Court held the real position to be that the persons obtaining the property from the sole owner derived title to the property from the recognised sole owner and such a document would have to satisfy the various formalities of law about the passing of title by transfer.

In the instant case, it is not the stand of anyone that the plaintiff or any one acting on his behalf acknowledged either explictly or by necessary implication, the exclusive title of the widow and daughters of Srinivasa Iyengar to the family properties and then received properties from these persons by way of gift or sale. In Ram Charan v. Girija Nandini : [1965]3SCR841 ,and Krishna Behari Lai v. Gulab Chand : AIR1971SC1041 , the Supreme Court construed how the word 'family' ,in the context of a family arrangement is to be understood. The Supreme Court. laid down as follows:

The word ' family' in the context of a family arrangement is not to be understood, in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in a property, in dispute. If the dispute which is settled is one between near relations, then the settlement of such a dispute can be considered as a family arrangement.

Ramanujam, J., held in Ramayammal v. Muthammal : AIR1974Mad321 , that a party who takes the benefit of a family settlement need not necessarily be shown to have under the law, a share of the property and it would be enough that the parties are related to each other in some way and have a possible claim to the property or even a semblance of a claim of some sort or other.

14. In the light of these decisions, I do not think the appellants can contend that the plaintiff cannot claim any benefit under the family arrangement on the ground that he did not have a subsisting title in the properties of the family at the time of the family arrangement was effected under Exhibit B-2. When the plaintiff was adopted as the son of Srinivasa Iyengar, it could not have been solely for his performing religious ceremonies for the bliss of Srinivasa Iyengar's soul without the plaintiff getting any material benefit whatever from out of the adoption. Undoubtedly as a member of the adoptive family the plaintiff acquired a status and certain rights and, it is inconceivable that he would not have asserted his right to get some property if none had been given to him by the defendants. There was, therefore, a very strong probability, after the adoption, of disputes arising between the plaintiff on the one hand and defendants 1 to 3 on the other in the matter of sharing of properties and the plaintiff going to Court to secure some property for himself. In order to avert such a dispute, the parties may have deemed it necessary to effect a family settlement. As has been pointed out in some of the decisions referred to above, it is not necessary that a dispute should have actually arisen between the parties for the family settlement being effected. Even otherwise, it must be noted that properties may have been given to the plaintiff by the parties to Exhibit B-2 from out of love and affection for him and in consideration of his leaving his natural family and becoming a member of the adoptive family, or out of considerations for the honour of the family or formality and cordial relationship between the members of the family.

15. In so far as the contention of the appellants about the properties given to the plaintiff being in the nature of a gift and therefore warranting a gift deed with all its concomitants is concerned the contention overlooks the fact that the plaintiff was a member of the family and not a stranger at the time of the family arrangement and the normal requirements for transfer of property under the laws of transfer, would not be attracted to giving and taking of properties under a family arrangement. It is by now well established that a family arrangement stands on a peculiar footing and having regard to the purport of such an arrangement, Courts will more readily give assent to a bona fide family arrangement than to avoid it. Considering the object of family settlements, Courts have placed the settlements on such a high pedestal that they have gone to the extent of laying down that principles which apply to the case of an ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements vide Pulliah v. Narasimhan : AIR1966SC1836 , and in certain cases, even the personal law governing the parties cannot trammel family arrangements validly arrived at vide Jainulabdeen v. Pappathi I.L.R. (1968) Mad. 477, where Ramamurthi. J., held that the rule of Mohamedan Law against creation of a the estate and vested remainder would have no application to a family settlement; Since there is no transfer of interest as envisaged by the Transfer of Property Act in a family arrangement, the Courts for long have held that family arrangements can be arrived at orally and a memorandum of what had been agreed upon need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. Quoting with approval the view of the frivy Council in Mt. Hiran Bibi v. Mt. Sohan Bibi I.L.R. (1968) 1 Mad. 477 the Supreme Court pointed but in Rant Charan v. Girija Nandini : [1965]3SCR841 , that a compromise by way of family settlement is in no sense, an alienation of family property. Consequently the setting apart of properties to the plaintiff under Exhibit B-2 was in recognition of his status and right as a member of the family and one entiled to participate in the family arrangement. It must therefore, necessarily follow that no transfer of properties as visualised under the Transfer of Property Act was effected in his favour and therefore, Exhibit B-2 cannot be said to suffer from infirmities as it does not satisfy the requirements of a gift-deed or sale-deed.

16. From another angle also Mr. G. Ramaswami, disputed the validity of Exhibit B-2 and his contention was that since Exhibit B-2 was in the nature of a contract, it should satisfy the test of mutuality, but in this case that factor was absent and on the other hand, the, arrangement was positively disadvantageous to the appellants. The learned Counsel pointed out that the widow as well as the three daughters of Srinivasa Iyengar would each be entitled to an one-fourth share in the properties of the deceased and would therefore have got 21/2 acres each besides an one-fourth share in the coconut tope, whereas the daughters were each given only one acre of land ill the properties left by Srinivasa Iyengar. Reference was made to the expression in Pullaiah v. Narasimhan : AIR1966SC1836 , that Courts will give assent to family arrangement only if the arrangement to found to have been entered into bona fide and the terms thereof are fair to the parties. He would go to the extent of contending that the appellants had executed Exhibit B-2 without being aware of their rights in the properties left by Srinivasa Iyengar. This argument contains two fallacies in it. In the first instance the contention is factually incorrect, for the test of fairness will depend upon the circumstances of each case. It is no doubt, true that if properties had not been given to the plaintiff, the three daughters as well as the widow of Srinivasa Iyengar would each get 21/2 acres of wet land and also an one fourth share in the interest which Srinivasa Iyengar had in the coconut tope., But it must however, be remembered that Srinivasa Iyengar had also left debts amounting to Rs. 22,000 at the time of his death. Therefore, the persons taking his estate would have to discharge the liabilities left by him and each sharer would have, therefore, to pay at least Rs. 5,500 to discharge each one's share of the debt. As per the family arrangement the sole responsibility of discharging the debts was cast on the plaintiff and therefore, the appellants as well as their sister and mother took the properties given to them free of any liability. Apart from that, the three daughters have each been given one acre of land belonging to their mother even during her life time. For all that we know the three daughters may not have got any share in the mother's property but for the family arrangement. On account of these factors the appellants cannot be heard to say that Exhibit B-2 fails to satisfy the test of mutuality and is therefore not enforceable. The second fallacy in the argument referred to above is that normal tests based on technicalities, like mutuality etc., are not applied to family arrangements. This is clearly brought out by the Supreme Court in Pullaiah v. Narasimhan : AIR1966SC1836 approving the passage occurring in Kerr on Fraud page 364 which is as follows 'Family arrangements are governed by a special equity peculiar to themselves and will be enforced if honestly made, although they have not been meant as a compromise but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually depend.' Therefore, even assuming for argument's sake, that the appellants had entered into the family arrangement without being aware of their entitlement to an one-fourth share in the properties of their father, it cannot be said that the arrangement is ineffective, when once it has been found that the arrangement had been bona fide entered into.

17. Closely linked with the contention that the appellants had not been given a fair deal in the family arrangement. Mr. Ramaswami propounded a proposition that Exhibit B-2 was more akin to a Will than a deed of family arrangement and therefore, the appellants cannot be deemed to have derived any advantage under the arrangement. It may be remembered that though the daughters of Srinivasa Iyengar were each given two acres of land, the deed provided that the first defendant was to enjoy the A.B. and G schedule properties during her life-time and enjoy the income therefrom and after her life-time the three daughters were to take the properties in accordance with the scheduled, Mr. Hamaswami's contention was that there, was no immediate vesting of the A.B and C schedule properties in the three daughters and their right to the land would materialise only after the death of the first defendant and therefore, Exhibit B-2 was nothing more than a Will. To fortify this contention, the learned Counsel placed reliance on Venkatachalam v. Govindaswami : AIR1924Mad605 , where a deed of gift which did not dispose of any immediate interest in property was held to be nothing but?. Will. This authority has no relevancy to the facts of the case, for, the view expressed therein was with reference to the contents of the document relied on in that case. In the instant case it may be seen that each of the three daughters was not only given one acre of land from out of their father's properties, but was also given one acre of land in the properties of the first defendant and in respect of the latter lands, there was an immediate vesting in each of the three daughters and there is nothing to. show that the vesting was postponed beyond the death of the first defendant. Moreover, the first defendant had not reserved for herself any power of revocation of the settlement. It would therefore, be futile for the appellants to contend that Exhibit B-2 was in the nature of a Will and the family arrangement did not therefore confer any benefit to the appellants. As pointed out in Pasungilia Pillai v. Isakkimuthu Pillai : AIR1928Mad349 a disposition in praesenti can be made vesting property in the third person on the death of the maker of the instrument and such a document cannot be construed as a Will. Similaly in Venkatasubramani v. Srinivasa : AIR1929Mad670 a document executed by a mother, in favour of her son with reservation that the mother would enjoy the income from the properties during her life-time without any power of alienation was held to be a settlement and not a Will. A Bench of this Court held in Ramaswami v. Venkatammal : AIR1965Mad193 that the extent of rights obtained by a party should be determined on a true construction of the document and sometimes even a partition deed may take the form of a family arrangement where under benefits might be conferred, not merely on the immediate parties to the partition, but on other persons as well. It was also observed in that case that even where a bequest of property was dependent upon a contingency it would not necessarily prevent vesting of the estate till the contingency happened. In those circumstances the contention of the appellants in this behalf must necessarily fail.

18. Another ground of attack, by the appellants, on the family arrangement as reflected in Exhibit B-2 was that Exhibit B-2 did not contain the' requisite dispositive words to show that 7 acres of wet lands and the share in the coconut tope had been given to the plaintiff absolutely. It may be remembered that Exhibit B-2 only mentions that 7 acres of land and a share in the Kondamari coconut tope have been set apart for the welfare of that adopted son. The contention of. Mr. Ramaswami was. that these words cannot be construed as. conferring an absolute title on the plaintiff in respect of the suit properties, and therefore, the plaintiff cannot claim title to the suit properties on the basis of Exhibit B-2. This argument cannot be sustained, for, it is based on a wrong premise viz., I that in a family arrangement there is a; conveyance inter se between the parties to the arrangement. Even otherwise it is ' by now well settled that an instrument has to be read as a whole before the effect of the dispositive words contained therein is interpreted. Viewed in that perspective, there can be no doubt that what the parties intended when they executed Exhibit B-2 was that the properties, viz., 7 acres of land and the share in the coconut tope were to be taken absolutely by the plaintiff in pursuance of the family arrangement. 'That such an interpretation of the words set apart' contained in Exhibit B-2, is completely in accordance with judicial view, can be seen from the decisions rendered in the following cases, In Abiba Ali v. Alhaji Mama Ali 56 L.W. 1 : 203 Ind.Cas. 561 : 76 C.L.J. 495 : A.I.R. 1942 P.C. 49, the Privy Council construed the words 'I leave in charge of' as equivalent to 'I devise absolutely to.' In Krishna Beharilal v. Gulabchand : AIR1971SC1041 , it was held that the words 'Malik Mustan' would justify the drawing of the inference that the estate had been given absolutely. Mr. Krishna Iyer, J, (as he then was) stated as follows in G. Geevarghese v. Issahak George : AIR1971Ker270 . 'Where there is no total lack of necessary words of disposition but the words of vesting are not clearly written in a deed, the deed will not fail because in case of marginal doubt validation is the rule of law.

19. A further ground of attack on Exhibit B-2 was that the plaintiff was not an eo nomine party to the arrangement and at the same time could not repudiate the liability imposed on him therein. No doubt the plaintiff, who was then a minor, had not been made eo nomine party to Exhibit B-2. But on that score, the appellants cannot be heard to say that the family arrangement must fall through. The first defendant who was the adoptive mother of the plaintiff was a party to Exhibit B-2 and therefore, it must be construed that she had validly and effectively represented the minor plaintiff in the family, arrangement. A contention, as the one now put forward, viz., that a family arrangement must fail because one of the parties thereto was not included in the deed of family arrangement was urged before the Supreme Court in Tek Bahadur v. Debi Singh : AIR1966SC292 but the Supreme Court repelled the contention and upheld the family arrangement. Mr. Ramaswami placed reliance on M.C. Chacko v. State Bank Travancon : [1970]1SCR658 to contend that a person who is not a party to a contract (in the instant case, the plaintiff) cannot enforce the terms of the contract. The decision has no application to the facts of the present case, and in any event, in that very decision, it was pointed out that the rule of bar of suit by strangers to a contract would not apply to family arrangement

20. The last ground of attack on Exhibit B-2 was that the document was vague inasmuch as it did not contain a schedule or description of the properties given to the plaintiff in the family arrangement, Exhibit B-2 merely says that out of the estate of Srinivasa Iyengar, 7 acres of nanja land and the right in the coconut tope were being given to the plaintiff and there is no reference to survey numbers or boundaries of the lands. This factor, however, cannot nullify the family arrangement of the deed evidencing it. The parties themselves understood what were the lands set apart for the plaintiff and mutation of the names in the revenue registers had subsequently been effected in accordance with the family arrangement. Even otherwise, Schedules A, B and C in Exhibit B-2 contained a description of the properties given to the three daughters and by a simple process of elimination even a third-party can find out, by reference to title deeds and records, what -were the lands given to the plaintiff in the family, arrangement. The question as to whether identifiable properties have been given under an instrument is always one of fact and the answer in each, case will, necessarily depend upon the facts of the, case. Where there is no room for uncertainty or ambiguity or vagueness, Courts have, always held that the absence of a detailed description of the properties dealt with under a deed will not render the instrument nugatory. As early as in Narasimha Nayanevaru v. Ramalingama Rao : (1900)10MLJ104 a Bench of this Court held that the description, of the properties dealt with by a document for purposes of the Registration Act, need rot be local and it would be enough if the description be such as to clearly identify the properties referred to by the instrument. It was observed therein that it world be enough that the property is described as the property Thought or inherited from AB and in that view even a description of the property 'as my family property' world be sufficient. Where in a deed of conveyance, the properties dealt with were recited as 'all the immovable and movable property which were in the possession and enjoyment if the deceased owner as belonging to him at the time of his death in a specific village' this Court held in Subbalakshmiammal v. Namsimhaiah : AIR1927Mad586 , that the description was sufficient and satisfied the requirement of Section 21(1) of the Registration Act.

21. Thus, it is seen that every one of the grounds urged in the second appeal to assail the judgments of the Courts below is not a tenable one. Both on fact and in law, the family arrangement is, undoubtedly, a valid and sustainable one, and the appellants, who had fully participated in the family arrangement and had also manifested, by their conduct, till disputes arose between the parties that they abided by the terms of the arrangement must even be held estopped from disputing the family arrangement. In support of this view I need only refer to Krishna Beharilal v. Gulabchand : AIR1971SC1041 where it was held that when parties have derived advantages under a family arrangement, they would be estopped from repudiating the arrangement at a later stage. Having 'derived advantage under the family arrangement by escaping from the liability to repay the debts of Srinivasa Iyengar and also getting a share in the first defendant's properties even during her lifetime, there is scant grace and less justice in the appellants trying to put the clock back and raising the bogey of a contention that there was no family arrangement at all and if there was one, it was not a legally recognisable one.

22. In the result the second appeal fails and is dismissed with costs to the first respondent-plaintiff.

23. The memorandum of cross-objections relates to item No. 24 and a scrutiny of the records shows that the learned District Judge had allowed the appeal in respect of this item due to a misconception. Admittedly this item was not included in Schedule A or in any other Schedule to Exhibit B-2 and therefore this item must also be held to be one of the items given to the plaintiff. 'The memorandum of cross-objections has therefore to be allowed and it is accordingly allowed, but there will be no order as to costs.

24. No leave in the second appeal.


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