Geetha K.G. v. K.G. Babu and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** ## **RSA NO. 316 OF 2017** **AGAINST THE ORDER/JUDGMENT IN AS 77/2012 OF SUB COURT, PALA** **OS 97/2010 OF MUNSIFF COURT, PALA** ## **APPELLANT/APPELLANT/5TH PLAINTIFF:** **GEETHA K.G. AGED 38 YEARS, D/O. GOVINDAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE,MEENECHIL TALUK, PIN CODE - 686514** **BY ADVS. SRI.KARTHIK BHAVADASAN SRI.B.DEEPAK** ## **RESPONDENTS/RESPONDENTS/DEFENDANT/PLAINTIFFS 1, 2, 4, AND 6 TO 8:** - **1 K.G.BABU AGED 42 YEARS S/O. GOVINDAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** - **2 DIVAKARAN AGED 58 YEARS, S/O. GOVINDAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** - **3 SASIDHARAN AGED 55 YEARS, S/O. GOVINDAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** - **4 OMANA AGED 49 YEARS, W/O. LATE VIJAYAN,KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** - **5 LALITHA AGED 50 YEARS, GOVINDAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** **6 VINEETH AGED 28 YEARS, S/O. LATE VIJAYAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** **R.S.A.No.316/2017** **2** **7 BINEESH** **AGED 25 YEARS,S/O. LATE VIJAYAN, KALAPURATHOTTIYI HOUSE,ELAKKADU KARA, ELAKKADU P.O, ELAKKADU VILLAGE, MEENECHIL TALUK, PIN CODE - 686 514.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2022,** **THE COURT ON 28.10.2022 DELIVERED THE FOLLOWING:** **R.S.A.No.316/2017** **3** ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.77/2012 on the files of the Subordinate Judge's Court, Pala which in turn arise out of the judgment and decree in O.S.No.97/2010 on the files of Munsiff's Court, Pala. 2. Appellant is the fifth plaintiff. Suit is one for partition. (Parties would hereinafter be referred as per their status before the trial court). The plaintiffs and the defendant are siblings. Their late father Govindan had 22 Ares of property in resurvey No.233/4 of Elackadu village and 12.83 Ares of property in resurvey No.216/23 of the same village. Father died intestate in 2000. Plaintiffs and the defendant are the legal heirs of the deceased Govindan. The properties are described as plaint schedule item Nos.1 and 2 properties which was obtained by partition deed No.182/85 of Kidangoor SRO as B schedule to the late father. The plaintiffs 4 and 5 are residing in the house situated in the plaint schedule item No.1 property. Though **R.S.A.No.316/2017** **4** plaintiffs demanded partition, defendant was not willing, thereafter lawyer notice was issued, but with no result. Hence, the suit. 3. Defendant filed written statement contending that the plaint schedule item No.2 is not partible. During the lifetime of father, item No.2 was mortgaged with District Co-operative Bank, Kottayam for availing a loan of Rs.1,50,000/- in connection with the marriage of 4[th] plaintiff. The loan was kept in arrears and Bank proceeded against the property. Since the legal heirs were not in a position to clear the dues, they approached the SNDP Sakhayogam, Kalathoor and an agreement was entered into on 23.09.2001 agreeing the mode of repayment of the loan and also regarding the mortgaged property. As per that agreement, mortgaged property was valued at the rate of Rs.10,000/- per cent and it was agreed to be given to the defendant for a total sum of Rs.2,50,000/-, from that amount, Rs.50,000/- was agreed to be given to 5[th] plaintiff and balance amount after deducting the loan dues was agreed to be shared equally among the plaintiffs 1 to 3 and defendant. It is also agreed that the share of the first plaintiff is to be given to the **R.S.A.No.316/2017** **5** defendant. As per that agreement payment was to be effected and release deed was to be executed within 60 days. It was accepted by the plaintiffs and the defendant after making clarification in the second meeting held on 30.09.2001. As per the clarification on 30.09.2001, the amount agreed to be paid to the second and third plaintiffs was fixed at Rs.16,000/- each. It was also agreed that 4 cents of property belonging to the first plaintiff was to be given to the defendant on 01.10.2001 and the amount to be paid to the appellant herein/5[th] plaintiff was enhanced to Rs.62,500/-. Though, as agreed, the document was not executed, the amount due to the bank was settled for a sum of Rs.1,85,000/- and that was given by the defendant in two installments. After that, the plaintiffs are not willing to execute the document in favour of the defendant. As per the agreement, amount was given by the defendant to his brothers Vijayan and Sasi and he was ready to pay the amount due to the 5[th] plaintiff. But the plaintiffs are not willing to execute the document in favour of the defendant with respect to plaint schedule item No.2 property. The defendant is in possession of the plaint schedule item No.2 from 23.09.2001 onwards. The agreement entered into between the plaintiffs and the defendant on 23.09.2001 before **R.S.A.No.316/2017** **6** the SNDP Sakhayogam is a family settlement. As per which, the defendant has got absolute right over item No.2 property. During the lifetime of the father, 4 cents of property included in item No.2 was assigned in favour of 1[st] plaintiff and she is residing therein. Thereafter, first plaintiff assigned that property in favour of 4[th] plaintiff and from him wife of the defendant purchased the property as per Assignment Deed No.5/2007 Kuravilangad SRO. Thereafter, the said property and the adjacent item No.2 property are being enjoyed by the defendant. 4. PWs 1 to 3 were examined and Exts.A1 to A7 marked from the side of the plaintiffs. DWs 1 and 2 examined and Exts.B1 to B10 marked from the side of the defendant. Ext.X1 minutes and Exts.X1(a) series and X1(b) were also marked. 5. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff ordered partition of plaint schedule item No.1 property alone. Against which, the 5[th] plaintiff filed A.S.No.77/2012 before the Sub Court, Pala. The learned Sub Judge on re-appreciating the facts, circumstances and evidence, dismissed the appeal confirming the findings of the trial court. Appellant/5[th] plaintiff aggrieved by the concurrent **R.S.A.No.316/2017** **7** findings with respect to item No.2 came up in Second Appeal. 6. At the time of admission, following substantial questions of law have been formulated by this Court: - “1. Whether the courts below were justified in law in construing Exhibits X1 to X1(a) as a family settlement since the rights of the parties originated from the execution of the said document? 2. When the rights of the parties originate from Exhibit X1 executed by them and even assuming that the said document can be construed to be a family settlement, whether the courts can then rely on terms of such an agreement if the same is not properly executed and registered? 3. Whether the courts below erred in not passing a decree of partition with respect to plaint schedule item no.2 property also especially when the parties continue to be joint title holders of such property and the defendant has failed to prove exclusive title or possession to the said property?” 7. Though notice was issued to the respondents, there is no appearance on behalf of them. Lower court records were called for and learned counsel for the appellant was heard. 8. According to the learned counsel for the appellant, **R.S.A.No.316/2017** **8** Ext.X1 (a) series and Ext.X1(b) which is only an arrangement between family members in the presence of SNDP Sakhayogam with certain stipulations including clearing the dues to cooperative bank by the defendant, which has not complied as agreed. So at any rate rights of parties originated from Ext.X1 and X1(b) cannot be taken as a family settlement and hence the courts below ought to have ordered partition with respect to item No.2 also. 9. Before going to the legal aspects, it would be necessary to understand the scope of Ext.X1(a) series dated 23.09.2001 and Ext.X1(b) dated 30.09.2001. X1(a) series is based upon a discussion between the family members i.e plaintiffs and defendant in connection with the liabilities with regard to plaint schedule item No.2 property in connection with the marriage of Omana/4[th] plaintiff and Ext.X1 (a) would show that there was a talk in between family members in the committee meeting of SNDP sakhayogam. Ext.X1(b) is in relation to the 2[nd] meeting by which final settlement was arrived at. In both the decisions all the parties have signed. 10. It is contended by the learned counsel for 5[th] plaintiff **R.S.A.No.316/2017** **9** that the defendant did not pay the amount as agreed and a petition was filed before the Lok Adalat by the Kottayam District Co-operative Bank in the name of the father, who had availed the loan from the bank, and Ext.B10 Award would go to show that, case was settled in Adalat fixed on 14.10.2006 for Rs.1,85,000/-. The fact that, it is the defendant, who had paid the amount, is not in dispute. According to the learned counsel, even the stipulations as per Ext.X1(b) have not been complied by the defendant and he did not clear the debt due to the bank as agreed. So, the moot question is, what is family arrangement and whether Ext.X1(a) series and Ext.X1(b) can be treated as family arrangement with respect to plaint item No.2 property. The learned counsel placed reliance on Sosamma Oomman and Ors. v. Annamma Simon and Ors [2016 (4) KLT 122 : 2016 (4) KLJ 157: 2016 (5) KHC 63] . 11. In Halsbury's Law of England Fourth Edition Vol.18 paragraph Nos. 301 to 303 deal with family arrangement, which read thus: 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 **R.S.A.No.316/2017** **10** of the family either by compromising 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. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. 302. Examples generally . The following different types of settlements, resettlements and agreements have been supported as family arrangements: (1) a resettlement by a tenant in tail on attaining full age reducing his interest to a life estate, with remainder to his issue in tail, even though the resettlement provides a jointure for the mother of the tenant in tail, and limits the estate to his younger brothers and their issue in tail, in priority to his own daughters; (2) an agreement to provide for the sisters of the tenant in tail as part of a transaction resettling the family estates; (3) a settlement made by parents on the occasion of their child's marriage making provision for the mother, though outside the marriage consideration, on her giving up her right to dower in her husband's estate; (4) an agreement between father and son altering the limitations of a family settlement; **R.S.A.No.316/2017** **11** (5) an agreement between father and son that property to which the former would become entitled as heir at law of a person of unsound mind, and which formerly had been in the family, should be settled to the same uses as the family estates; (6) an agreement providing for payment of the son's debts in consideration of his giving up his interest in the family business; (7) a conveyance of the father's life estate to the son, a tenant in tail, in consideration of the father's debts, provision being made for the father, mother, brothers and sisters; (8) a covenant to settle property on a nephew alienated from his father by a marriage without his father's consent, in order to reconcile father and son; (9) a resettlement of the family property making provisions for an illegitimate son, or a division of the family property for the same purpose; 303. Examples relating to the division of property. The following arrangements for division of property have been supported as family arrangements: (1) an agreement for the division of family property by way of compromise of a family quarrel or litigation about a disputed or lost will, or even to prevent family friction, where there is no question as to the devolution of the property nor any disputed right, there being some consideration for the arrangement other than love and affection or any arrangement as to division of property **R.S.A.No.316/2017** **12** where the construction of a will or other instrument under which the parties claim is doubtful; (2) an agreement dividing up family property, though entered into under a misapprehension of the legal rights of the parties, provided the misapprehension is not induced by any party to the agreement, even where the fact that misapprehension existed has been established by subsequent legal decisions; (3) an agreement between members of a family to divide equally whatever they obtain under the will of an ancestor; (4) an agreement between co-heiresses dividing the property between them; (5) an agreement between the heir at law and a person supposed to be entitled under a lost will dividing the property between themselves and other members of the family; (6) an agreement dividing the family property between members of the family where some of the members had a title independently of the will of their father, who purported to dispose of the whole among his sons and daughters". 12. What actually is family arrangement has been discussed by a Division Bench of this Court in Thayyullathil Kunhikannan & Ors. v. Thayyullathil Kalliani & Ors. [AIR 1990 Ker 226] . Relevant portion of the said judgment is very apposite in **R.S.A.No.316/2017** **13** ## this context to be extracted, which reads thus: ## “39 What then is a family arrangement ? 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 compromising 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. The agreement may be implied from a long course of dealings, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. (Halsbury's Laws of England, Fourth Edition, Volume 18, Page 135, paragraph 301) Family arrangements are respected, and acted upon, by Courts. Courts are reluctant to upset such arrangements validly entered into by the parties. As observed by Halsbury Volume 18 at page 137 paragraph 304: "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." Family arrangements are generally entered into for the purpose of the well being, and harmony, in the family. Thereby disputes are avoided, the honour of the family safeguarded and obligations morally binding on the members of a family are provided for. The factual existence of a dispute is not a sine qua non for the validity of a family arrangement or to justify its existence in view of the beneficial nature and effect of such arrangements. It was held in Pokhar **R.S.A.No.316/2017** **14** Singh v. Mt. Dulari Kunwar, AIR 1930 Allahabad 687 following the decision in Williams v. Williams, (1867) 2 Ch App 294 that "for a family arrangement to be good and binding, it is not necessary that there should be a family dispute which had to be settled or composed". The fact that by their agreement, the parties have avoided the necessity for, or possibility of legal proceedings, is sufficient consideration to support it. Woodroffe and Ameer Ali in their Law of Evidence 13th Edition, Volume 3 at page 2896 summarise the law as follows: ## "28. Family arrangements-- Estoppel by conduct may arise in the case of family arrangements, the decisions as to which extend not merely to cases in which arrangements are made between members of a family for the preservation of its peace but also to cases in which arrangements are made between them for the preservation of its property.............. Where family arrangements have been fairly entered into, without concealment or imposition on either side, with no suppression of what is true, or suggestion of what is false, then although the parties may have greatly misunderstood their situation, and mistaken their rights, a Court of Equity will not disturb the quiet, which is the consequence of that agreement; but when the transaction has been unfair, and founded upon falsehood and misrepresentation, a Court of equity would have a very great difficulty in permitting such a contract to bind the parties. When a family arrangement has been entered into, or acquiesced in by all the persons interested in the family property, and has been carried into effect, then none of the persons who consented thereto may thereafter be heard to repudiate that arrangement, or to set up that it is not binding in law........ A family arrangement stands on a different footing from an ordinary contract. A settlement of doubtful claims, or rather what the parties believed to be doubtful claims without the worry and expense of litigation might itself be a sufficient "consideration" for such an arrangement. The fact that there was no other consideration to support the arrangement, or that it transferred the property to a person without any **R.S.A.No.316/2017** **15** right, is not, therefore, a sufficient ground for setting aside a family arrangement. The matter is again dealt with by Sarkar in his Law of Evidence 13th Edition page 1128 : "A family arrangement has been defined as an arrangement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigating or by saving its honour." Avoidance of family disputes is only one of the many grounds which go to validate a family arrangement. Any arrangement which is for the benefit of the family generally or tends to the preservation of peace and security in the family is sufficient to make it a family arrangement, valid and binding on the members. When there is a family arrangement binding on the parties, it would operate as an estoppel by preventing the parties, after having taken advantage under the arrangement, from resiling from the same, or trying to revoke it. Recitals in the document incorporating the family arrangement are also equally binding. Spencer Bower in his book Estoppel by Representation, Third Edition, page 158, paragraph 159 states : "Most cases of estoppel by convention are founded simply on the proposition that it is just that the parties to a transaction be precluded from denying what has been assumed between them as its essential factual basis." ## x x x x x 40. The recitals in the document or arrangement are evidence as against the parties to the document. If it is a settlement deliberately made and parties have acted upon the document, the recitals on the faith of which the other parties have acted, induced on the strength of the facts, and the position adumbrated in the document, operate as an estoppel in favour of the parties (see Woodroffe and Ameer Ali: Law of Evidence 13th Edition Volume 3, page 2908). A party who takes under a document cannot disaffirm the other portions of the same document. He cannot be **R.S.A.No.316/2017** **16** allowed to approbate and reprobate. The principle is that there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it conforming to all its provisions and renouncing every right inconsistent with it (Snell's Principles of Equity 28th Edition page 495). The Privy Council had as early as in Rungama v. Atchama, (1846-51) 4 Moore's Indian Appeals I at page 103 applied as a principle based on the rules of justice that "a party shall not at the same time, affirm and disaffirm the same transaction -- affirm it as far as it is for his benefit, and disaffirm it as far as it is to his prejudice." In Lakshmi Bai v. Ganpat Moroba, (1868-69) 5 Bom HCR 128, one Vasudev Viswanath, who had obtained property on partition of a Hindu undivided family, executed a will making inter alia a residuary bequest of his assets to his two sons and four grand-children, who were the sons of a deceased son Moroba. The residuary bequest was not to take effect until the death of his widow. The estate was divided in 1855 by arbitrators, the four sons of Moroba, who were then minors, represented by their mother taking their share together. There was a suit in the year 1856 when the greater part of the movable property allotted to the grandchildren was partitioned. They however continued to enjoy the immovable property as a Hindu Undivided Family. A portion of the property was sold in 1866 with the mother of the minors acting as their guardian. The widow of one of these grandchildren later brought a suit for partition claiming a 1/4 share of the allotment made as per the arbitration award in 1855. On the pleadings of the parties, the validity of Vasudev's Will itself was questioned on the ground that the testator had no right to dispose of the property by Will. The plaintiff however pointed out that the parties had by their subsequent acts and conduct acquiesced in the disposition of the property made by the testator. It was in this context the Court observed at page 138: "Now upon these facts we are of opinion that there is evidence of a family arrangement to give effect to the Will which the Court ought to uphold. The defendants, if not bound by the reference to arbitration and the equity suit, have since they attained their majority, adopted and confirmed the act of their mother and guardian. In order to constitute a binding family arrangement it is not necessary that there should be **R.S.A.No.316/2017** **17** any formal contract between the parties, and if sufficient motive for the arrangement is proved, the Court will not consider the quantum of consideration. Williams v. Williams, (1867) 2 Ch App 294. The fact that by their agreement the parties have avoided the necessity of legal proceedings, is a sufficient consideration to support it. Partridge v. Smith, (1863) 9 Jur NS 742, Naylor v. Wynch, (1824) 1 Sim & Sim, 555 (564): 2 LJ Ch 132. From the time of the death of Vasudev Viswanath until the dispute between the present plaintiff and the defendants arose, the validity of the will does not appear to have been questioned. The Court must therefore, consider the Will as a valid one." ## x x x x The entire matter has been dealt with by the Supreme Court in Kale v. Dy. Director of Consolidation, AIR 1976 SC 807. The Court said that even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement. The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all his claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the Courts will find no difficulty in giving effect to the same. 41. Halsbury (4th Edition Volume 16, page 1059 paragraphs 1571 and 1572) deals with estoppels by deed as follows: "Estoppel by deed is based on the principle that when a person has entered into a solemn engagement by deed under his hand and seal as to certain facts he will not be permitted to deny any matter which he has so asserted. It is a rule of evidence according to which certain evidence is taken to be of so high and conclusive a nature as to admit of no contradictory proof.".......... **R.S.A.No.316/2017** **18** "A party is estopped from denying any specific facts contained in a recital in a deed to which he is a party, provided the recital is certain, precise and unambiguous." ## 13. Kale & Ors. v. Deputy Director Of Consolidation & Ors. [AIR 1976 SC 807 : (1976) 3 SCC 119] was a case in which there was some dispute between family members and the matter was pending before the Tahsildar and while so a compromise was entered into between parties and as per the compromise parties were allotted some shares and that compromise was approved and mutation was effected and the parties remained in possession of properties as allotted to them and paid revenue to the government and subsequently revision proceedings have been initiated before Deputy Director of Consolidation reversed the order of the Settlement Officer and thereafter the parties approached the Allahabad High Court in writ petition against the order of the Deputy Director of Consolidation and the learned Single Judge upheld the order of the Deputy Director of Consolidation and the special appeal was filed before the Division Bench which also confirmed the judgment of the Single Judge and thereafter party approached by special leave before the Apex Court and the contention raised was an effect ought not have been given to family arrangement arrived at between the **R.S.A.No.316/2017** **19** parties since it is not legally sustainable. In that decision, the Apex Court discussed in general the effect and value of family arrangement which reads thus: 9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus: “The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. 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 are, or of the points on which their rights actually depend.” The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, **R.S.A.No.316/2017** **20** therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs But even those persons who may have some " sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the Rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: “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 compromising 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. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under **R.S.A.No.316/2017** **21** family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, 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.” x x x x 13. In Sahu Madho Das v. Mukand Ram (1955) 2 SCR 22, 42-43 = (AIR 1955 SC 481, 490, 491), this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J. speaking for the Court, observed as follows: It is well settled that a compromise or 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 these cases 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 arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) **R.S.A.No.316/2017** **22** and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.” x x x x 15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295 it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus: “Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.” **==> picture [153 x 36] intentionally omitted <==** 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 **R.S.A.No.316/2017** **23** law be inferred from long course of dealings between the parties. In Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836 -this Court held that 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 or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts would more readily give assent to such an agreement than to avoid it.” Ultimately it was found that the courts have taken a very liberal and broad view of the validity of family settlement and have always tried to uphold it and maintain it. The certain idea in approach made by the courts is that by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds. 14. Ext.X1(a) series and Ext.X1(b) would clearly indicate that all the family members had approached the SNDP Sakha for an amicable settlement with respect to plaint schedule item No.2 property which was mortgaged by the father to the bank and the loan fell in arrears and with the inclusion of all the legal heirs of the deceased Govindan the settlement was arrived with certain **R.S.A.No.316/2017** **24** stipulations directing the defendant to clear off the dues to the District Co-operative Bank and with certain other stipulations. Though he could not clear the arrears due to the bank within the time prescribed in Ext.X1(b), Ext.B10 Award would show that in Adalat upon a petition filed by the bank, which is produced as Ext.B9, the matter was settled for Rs.1,85,000/- since the bank had given some reduction in amount. 15. As pointed out earlier, it is not in dispute, that the defendant had paid the amount due to the bank. Even if there are some stipulations with regard to clearing the arrears, payment of amount to some of shareres etc., all those form part of the family arrangement. All the shareres agreed to the stipulations and signed Ext.X1(a) series and Ext.X1(b) including the 5[th] plaintiff. She cannot approbate and reprobate. There had consensus among the shares to resolve the issue with respect to item No.2 property agreeing the defendant to take it at a value of Rs.10,000/- per cent and in return he should clear the dues along with other stipulations. That is reasonably for the benefit of the family, otherwise Bank would initiate recovery proceedings with respect to item No.2. Hence that arrangement **R.S.A.No.316/2017** **25** will definitely come under the purview of family arrangement. The settled position of law discussed above is that endeavor of the courts should always be to recognize family settlement and not to permit them to reopen the matter which is already settled between the parties. 16. Though the learned counsel for the 5[th] plaintiff relied on Sosamma Oomman , referred above, on going through the judgment, what could be gathered is that the case of the plaintiffs in that case is that the parties assembled in the house of defendant No.4 on the 41[st] day of the death of the father and agreed to re-partition the property and the settlement was reduced into writing by an agreement to which except one, all subscribed their signatures. But there was no case for the parties that a decision was already taken to re-partition the property and that it is recorded in the agreement as a past transaction and agreement was a contemporaneous document with the decision to re-partition the property in supersession of all of the earlier deeds and that agreement purported to extinguish the existing rights and create new rights and in the said circumstances it was held that the registration under **R.S.A.No.316/2017** **26** Section 17(1)(b) of the Registration Act 1908 is necessary. It is also held that an unregistered agreement can be treated as a family settlement only if it records past transaction and is complete in itself as regards the rights and liabilities. Finding that the agreement Ext.A1 in that case intends to create right in presenti and the same sans registration was found to have no validity in the eye of law as a family settlement. So on a bare glance to the facts of that case it could be seen that by an agreement newly entered into by the parties they wanted to repartition the property in supersession of the earlier deeds in the way of a family settlement. So, in the said circumstances, it was held that, it has to be registered. But, here, no such contingency arise and hence the above decision has no application to the case in hand. 17. In the present case on perusing Ext.X1 (a) series and Ext.X1(b), it could be seen that the plaintiffs and defendant approached the SNDP Sakha to settle the transaction of their father mortgaging plaint item No.2 property to Bank and availing loan of Rs.1,50,000/- in connection with the marriage of 4[th] plaintiff. Father died and loan fell in arrears and in order to avoid **R.S.A.No.316/2017** **27** the proceedings of the bank it was agreed between the family members that the defendant will take the property at a value of Rs.10,000/- per cent and there are also certain other stipulations to clear the arrears due to the bank and to pay Rs.50,000/- to 5[th] plaintiff, to distribute the remaining amount also among some of the heirs. Since the matter could not be finally settled on the first day, again on 30.09.2001 another committee was convened by the SNDP Sakha and the matter was discussed and certain other stipulations were also entered and agreeing the terms all the parties signed Ext.X1(b). So even if in the settlement there are some other stipulations to clear the arrears due to the bank as well as to distribute the amount among the sharers etc. as specified in Ext.X1(b), it will not in anyway change the nature of the arrangement between the plaintiffs and defendant short of family arrangement. So also due to the fact that settlement was arrived at with the intervention of SNDP Sakha, will not take it out of the purview of family settlement. 18. In Halsbury's Law of England extracted above specifically provides such stipulations like an agreement for providing for payment of son's debts in consideration of his **R.S.A.No.316/2017** **28** giving up his interest in the family business and a conveyance of the father's life estate to the son in consideration of father's debts etc. in family arrangement. 19. So on a close evaluation of the facts and circumstances and law involved, I fully endorse the view expressed by the courts below that plaint schedule item No.2 property has already been settled by way of family arrangement, i.e. Ext.X1 (a) series and Ext.X1(b). So I do not find any reason to interfere with the said finding entered into by the courts below. In the result, appeal is found to be devoid of any merit and hence dismissed. In the facts and circumstances, there is no order as to cost. Sd/- SHG **M.R.ANITHA JUDGE**