RFA No. 143 of 2004 (Sajida v Abdul Jabbar, Abdul Raheem, Noor Zameer, Khadeeja, Ramla Beegam, Dr. S. Nurudeen, Azad N.N. and others)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 ``` ## **`RFA NO. 143 OF 2004`** ``` AGAINST THE DECREE AND JUDGMENT IN OS 75/2001 OF SUB COURT, THODUPUZHA DATED 16.10.2003 ``` ## **`APPELLANT/PLAINTIFF:`** ``` SAJIDA, D/O.HAJEE P. PAREED BAVA, PALLIMUKKIL HOUSE, THODUPUZHA. BY ADV SRI.T.KRISHNAN UNNI (SR.) ``` ## **`RESPONDENTS/DEFENDANTS:`** - `1 ABDUL JABBAR, S/O. LATE HAJEE P.PAREED BAVA,, PALLIPPARAMBIL HOUSE, (NADACKAL), THODUPUZHA.` - `2 ABDUL RAHEEM, S/O. LATE HAJEE P.PAREED BAVA,, PALLIPPARAMPIL HOUSE, (NADACKAL), THODUPUZHA.` - `3 NOOR ZAMEER, S/O. LATE HAJEE P.PAREED BAVA,, PALLIPPARAMPIL HOUSE (NADACKAL), THODUPUZHA.` - `*4 KHADEEJA, D/O. LATE HAJEE P.PAREED BAVA,, PALLIPPARAMPIL HOUSE (NADACKAL), THODUPUZHA,, HER PRESENT ADDRESS, KHADEEJA, W/O. DR.N.S.NOORUDHEEN, RETD.CIVIL SURGEON, KALLADIKODE, PALAKKAD DISTRICT. (*DIED, LRs IMPLEADED)` - `5 RAMLA BEEGAM, D/O.LATE HAJEE P.PAREED BAVA,, PALLIPPARAMPIL HOUSE, (NADACKAL), THODUPUZHA, HER PRESENT ADDRESS, RAMLS BEEGAM, W/O. P.S.MUHAMMED NAZEER, MANAGER, FEDERAL BANK, OORAKAM BRANCH, VENGARA, MALAPPURAM DISTRICT.` - `*6 DR.S. NURUDEEN, AGED 70 YEARS, S/O T.H.SAYED MOHAMMED RAWTHER, NOORANIA HOUSE, MELEMADOM, KALLADICODE PO MANNARKKAD TALUK,PALAKKAD DISTRICT.` R.F.A. No. 143 /2004 2 ``` *7AZAD N.N., AGED 40 YEARS, S/O N.S. NURUDEEN ADVOCATE, NOORANIA HOUSE, MALEMADOM, KALLADICODE PO, MANNARKKAD TALUK, PALAKKAD DISTRICT. (THE LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 6 AND 7 VIDE ORDER DATED 16.3.10 IN IA 832/10). BY ADVS.SRI.MATHEW JOHN K-R1 & R2 SRI. P.K. ABOOBACKER - R3 SRI.T.J.MICHAEL - R3 SRI.V.V.ASOKAN - R5 SRI.RAJESH SIVARAMANKUTTY – R6 & R7 ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.F.A. No. 143 /2004 3 ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 143 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of June, 2022 ## JUDGMENT O.S.No.75/2001 filed by the plaintiff seeking for partition and other consequential reliefs was dismissed by Subordinate Judge's Court, Thodupuzha by judgment dated 16.10.2003 and that is assailed in the appeal on hand. 2. One Mr.Hajee P.Pareed Bava died intestate on 30.10.1997. Properties scheduled in the plaint belonged to him and on his demise those were devolved upon the plaintiff and defendants 1 to 6, as co-owners. 6[th] defendant is the wife of Hajee.P. Pareed Bava and the plaintiff as well as defendants 1 to 5 are children born in her wedlock with him. She was suffering from cancer and other ailments related to old age. The plaintiff being the youngest one among the children was bestowed with special affection by the 6[th] defendant. Taking advantage of the serious ailments of the 6[th] defendant and making use of her continuous absence from the residence for treatment purposes, defendants 1 to 3 with the aid of their uncles, 4 in numbers and friends, R.F.A. No. 143 /2004 4 conspired to have a division of the properties whereby major and valuable shares were allotted among themselves, and namesake shares alone left for daughters, who are defendants 4 and 5 and the plaintiff. Plaintiff was not even permitted by the 3[rd] defendant to see her mother. 3. Context being so, on 31.7.2000 the plaintiff and her husband were asked to reach the residence of the 1[st] defendant urgently. They rushed to the house and found a gathering of defendants 1 to 4 and 6, husband of the 5[th] defendant and their uncles there. The husband of the plaintiff was an advocate by profession and the uncles informed him about the proposal for division of the properties and asked him to put in writing, what have been dictated by them. Without realising the foul play involved in the proposal, he scribed the deed as directed by them. He was also made to sign it as it's scribe. All the legal heirs of deceased Hajee were also made to affix their signatures in the draft agreement. 4. Finding that only shares in pittance have been allotted to them by the draft agreement, the plaintiff, the 4[th] defendant and the husband of the 5[th] defendant objected to the same and demanded to have an equitable division of shares and allotment R.F.A. No. 143 /2004 5 among all members of the family. Defendants 1 to 3 alongwith their uncles and friends created a scene there and the 6[th] defendant bursted out and cried aloud. She insisted the plaintiff and others that if they refuse to sign, her life will be put to an end. Therefore, without free consent, she affixed her signature in the draft agreement. After a few months plaintiff came to know that a partition deed was registered on 17.11.2000 without making herself and her sisters parties to that. The most valuable properties were allotted as shares of defendants 1 to 3 without allotting any share for the 6[th] defendant. Some amount alone was set apart in favour of the 6[th] defendant under the agreement dated 31.7.2000, without a whisper being made about that in the partition deed. Three daughters including the plaintiff were allotted only small portions of the plaint schedule properties, that too in an interior part of Thodupuzha Town. The said properties being situated away from the town are liable to fetch only meager value. The 5[th] defendant was not available at the relevant time of registration of the deed. At the time of her marriage plaint C schedule property was gifted to the plaintiff by the deceased father as per gift deed No.2168/87 registered at the office of Sub Registrar, Thodupuzha. Other valuable properties with main road R.F.A. No. 143 /2004 6 frontage were also similarly gifted to other children by their deceased father. The deceased had told the children at the time of grant of C schedule property as gift infavour of the plaintiff that a road will be provided for access to it from ThodupuzhaUdumpannoor road. The plaintiff had been using a pathway for her ingress and egress into the plaint C schedule property. It was intended by the father that on partitioning B schedule, the way must be kept exclusively available to the plaintiff for use and the remaining properties alone will be available for partition. But, ignoring the direction, a Swathubhaga Udampady was drafted on 31.7.2000. Lateron, against the undertaking to carryout the commitments of the deceased father, the lie of the road was changed. 5. Several businesses conducted by Sri.Hajee P. Pareed Bava during his lifetime were continued to be run by defendants 1 to 3 evenafter his death, at their will and pleasure and the profits derived therefrom was also shared without the involvement of the plaintiff and others. Defendants 1 to 3 derived a net profit of Rs.72,000/annually and without sharing it proportionately among all, they misappropriated it for their own benefits. Therefore, claiming 7/72 share in the plaint schedule property and a share in the profits of the R.F.A. No. 143 /2004 7 business concerns run by late Pareed Bava, the deceased father, at the rate of Rs.7,000/- per annum, O.S.No.75/2001 was filed. 6. An alternative prayer was also made by the plaintiff that if the court finds that the document dated 31.07.2000 is valid and binding on her, the same shall be enforced by an equitable partition by metes and bounds and separate share in B Schedule property shall be allotted to her by giving effect to the stipulations relating to D, E and F Schedule properties mentioned in the agreement. She also seeks for carving out a way of three meters width to the C Schedule. 7. The 6[th] defendant died on 13.8.2003 during trial of the suit and therefore, the plaintiff and defendants 1 to 5 being her legal heirs have come up with an added prayer to get 1/9[th] share out of her 1/8[th] share. 8. The prime contentions raised by defendants 1 and 2 in their joint written statement were that P.H.Haneefa Rawther, the husband of the plaintiff was the master brain behind the institution of the suit on hand. According to them after due discussions and deliberations among all parties that terms have been settled and an agreement was executed on 31.7.2000 and on it's basis, partition deed No.3414/2000 was executed and got registered. Uncles and R.F.A. No. 143 /2004 8 friends were also available at the time of arriving at the terms on division of shares and consequent execution of agreement. 5[th] defendant was not available, but, her husband was present. The plaintiff's husband scribed the agreement which was ratified later by the 5[th] defendant. Therefore, there is no merit in the contention that all are bound by the terms of the agreement. Plaintiff and defendants 4 and 5 were duly informed, but they did not turn up and therefore, it was registered in their absence. Property was gifted by deceased mother to the plaintiff and none else. The income derived from the business is low. Parties to the suit having signed agreement dated 31.7.2000, are bound by the division of shares it incorporates and therefore, the prayer of the plaintiff for partition of the plaint schedule properties by metes and bounds is devoid of merits and the suit for partition is liable to be dismissed. 9. Third defendant filed separate written statement raising contentions identical to those raised by defendants 1 and 2. A counter claim was raised seeking for a direction to the plaintiff and defendants 4 and 5 to subscribe their signatures to partition deed No.3414/2000 and to get it registered at their instance, that the 6[th] defendant has no special intimacy to the plaintiff, that she was looked after by her sons, that there was no conspiracy to have a R.F.A. No. 143 /2004 9 partition and to allot valuable shares to the sons, that agreement dated 31.7.2000 was executed under the mediation of the paternal brothers of the plaintiff and two respectable persons of the locality after due discussions with all legal heirs, that the plaintiff and her husband had taken part in the discussions, that the husband of the 5[th] defendant had also participated in the discussions as her representative, that the agreement was prepared by Adv. Haneefa Rawther, that it was ratified later by the 5[th] defendant, that the property was surveyed by a retired Village Officer, that the plaintiff and defendants 1 and 2 did not turn up and therefore the partition deed was executed by defendants 1 to 3 and 6 in accordance with the terms of agreement dated 31.7.2000, that the plaintiff was never obstructed from visiting her mother, that the plaintiff had signed the agreement with full consent, that the preparation of the partition deed was intimated to the plaintiff in advance, that it was prepared strictly in tune with the terms of agreement dated 31.07.2000, that due to the inability of the 6[th] defendant to travel, Sub Registrar was called on to the house of the 3[rd] defendant, that the contention that the value of the shares allotted to them are meagre when compared to the shares allotted in favour of defendants 1 to 3, is not true to facts, that the alleged oral gift is R.F.A. No. 143 /2004 10 false, that all the businesses of Hajee except the Kerosene business were closed down prior to his death itself, that after the death of the father, the kerosene dealership is being run by the 2[nd] defendant, that the allegation of misappropriation of profits from the business concerns is an utter falsehood, that agreement dated 31.07.2000 is binding on the plaintiff, that the means of access to plaint C schedule is only a pathway and a road was not in existence, that the partition deed was executed after giving notice to defendants 4 & 5, that the plaintiff has no cause of action, and is liable to stand by the terms of the agreement and is legally bound to join the partition deed and that a counter claim is raised seeking for issuance of a direction to the plaintiff and defendants 4 and 5 to affix their signatures in partition deed No.3414/2000 so as to get it registered at their instance also. 10. The 4[th] defendant in his written statement has contended that their mother never had special affection to the plaintiff, that defendants 1 to 3 had created a scene at the house of the 2[nd] defendant only to get greater benefits and advantages in the properties, that defendants 1 to 3 in the presence of their uncles and family friends prepared a document holding out that it is a bare agreement to have the division of the common properties, R.F.A. No. 143 /2004 11 that she was never informed that it was a 'swathubhaga karar udampady', that signature was affixed in the agreement unknowingly of it's contents, that her husband was not with her at that time, that she had no occasion to understand the true nature of the document, and therefore, it is per se illegal, that the signature was affixed only on the impression that an equitable partition would be effected at a later point of time, that the partition deed is the outcome of fraud and coercion and therefore is not binding on the plaintiff and defendants 4 and 5, that the father had never left three cents of property for use by the plaintiff as a road to reach plaint C schedule property, that she is entitled to get 7/72 shares in the entire properties, that the suit is bad, since the relief sought being partial partition and that she is entitled to get her share in the immovable properties and profits derived from the business concerns. 11. The 5[th] defendant in her written statement had contended that Abdul Razak and P. Kasim were not asked to mediate the disputes regarding the property, that V.M. Abbas and M.S.M Labba allegedly available at the time of execution of the agreement are stooges of the 3[rd] defendant, that her husband was never authorised by her to participate in the mediation occurred on R.F.A. No. 143 /2004 12 31.07.2000 and sign papers on her behalf, that the agreement executed on that day was not ratified by her, that if at all a signature appears in any document as authored by her, it will only be a forged one at the instance of defendants 1 to 3, that she was residing at Malappuram with her husband, that her husband while returning from Erattupettah on 31.07.2000, made a visit to the house of the 1[st] defendant, that her husband informed immediately after reaching their house at Malappuram that he was compelled by defendants 1 to 3 to affix his signature in a paper at the residence of the 1[st] defendant, that a complaint was not filed before the police as the agreement was invalid, that only on receiving the legal notice, she came to know about the intention behind the execution of the agreement on 17.11.2000, that the agreement and the partition deed are not at all binding on her, that the profit estimated by the plaintiff is very low, that she is entitled to get her share separated as per the rules of Succession of personal law of Muhammadans, that though the 3[rd] defendant had obtained a Succession Certificate in his favour, the amount was not administered and distributed among the legal heirs, that the plaintiff is entitled to get partition under the Muhammadan law, that the reliefs sought for by the 3[rd] defendant are not allowable and therefore a counter claim was raised seeking for partition of the R.F.A. No. 143 /2004 13 plaint schedule property by metes and bounds and allocation of separate shares in all immovable and movable properties. 12. The 6[th] defendant had supported the contentions of defendants 1 to 3 in her written statement. According to her, she was residing with her eldest son, that she had equal affection and love towards each of her children and nothing special towards plaintiff, that on 31.07.2000 the plaintiff and defendants alongwith her brothers in law, Mr.Kasim and Mr.Razak, and uncles, Mr.Abbas and Mr.M.S.M. Labba, had taken a decision jointly to partition the properties belonging to her deceased husband and an agreement was executed, that nothing unusual had taken place on 31.07.2000 as averred by the plaintiff, that all legal heirs had signed the agreement written by Haneefa Rawther, that she did not compel the plaintiff to affix her signature in it, that the partition deed was executed on 17.11.2000 in accordance with the terms of agreement dated 31.07.2000 and it was signed by her on her own and with free consent, that the amount mentioned in agreement dated 31.07.2000 was entrusted with her on 01.08.2000 itself and is being enjoyed by her and that share in the immovable properties was not allocated to her since she had relinquished it. According to her, the plaintiff is bound by the terms of the agreement and R.F.A. No. 143 /2004 14 therefore, the suit for partition is only liable to be dismissed. The plaintiff filed a replication denying her liability to execute a partition deed in accordance with the agreement, execution of which is now in dispute. 13. While the trial was in progress, the 6[th] defendant died on 13.08.2003 and therefore the plaint was amended incorporating an additional claim of the plaintiff that she is entitled to get 1/9 share of the entire property. Additional written statement was filed by defendants 1 to 3 after carrying out the amendments, wherein the claim of the plaintiff was opposed stoutly and contended that partition of the property belongs to the 6[th] defendant can only be sought in a separate suit. 14. Sri.Krishnanunni, the learned senior counsel contended on behalf of the appellant that the agreement is invalid and unenforceable for the reason firstly that it does not contain a precise recital about allotment of shares to the plaintiff and defendants 4 and 5, who are daughters as well as legal heirs of deceased Hajee P.Pareed Bava. Secondly the attack was against inequitable distribution of shares among the legal heirs. The third ground of attack was that though the partition deed was allegedly executed by defendants 1 to 3 in accordance with the terms of R.F.A. No. 143 /2004 15 Ext.X1, a scrutiny of it would reveal that the terms are not strictly followed. The contention raised forthly was that Ext.X1 though a compulsorily registrable document under Section 17(1) (b) of the Registration Act, 1908, it being unregistered is inadmissible in evidence. Fifthly, the contention taken was that the parties to Ext.X1 were forced to sign it by partisans of defendants 1 to 3 who played role as mediators and therefore coercion cannot be ruled out. It was contended sixthly that information was not transpired to the plaintiff and defendants 4 and 5 when Ext.B4 partition deed was taken to the SRO for registration. The contention raised lastly was that though the 6[th] defendant mother was alive during trial, she was not examined to establish the contentions raised by her in the written statement filed. Non examination of the scribe, who is none other than the husband of the plaintiff is also contended as having crucial adverse bearing on the issues involved. 15. Sri. T.J.Michael has contented on the contrary that Ext.X1 being an agreement wherein certain terms about division of shares among the legal heirs of deceased Pareed Bava have been incorporated, it can only be taken as a family arrangement and as per the terms agreed to by the parties, their rights over the proposed allotment of shares was not crystallised and therefore, the agreement R.F.A. No. 143 /2004 16 cannot be treated as a compulsorily registrable document as contended by the plaintiff. He has also relied on some decisions to convince this Court, on the point. According to him, Ext.X1 being a document executed after due discussions and deliberations among the parties and representatives of some of those at the residence of the 1[st] defendant in the presence of independent witnessess, there is absolutely no reason to doubt the legality of it’s execution. According to him, admittedly of PW1 and DWs 1 to 5, the husband of the 5[th] defendant had taken part in the discussions that had taken place at the residence of the 1[st] defendant and affixed their signatures to the terms arrived at, for and on behalf of the 5[th] defendant. According to him, the 5[th] defendant had also ratified the terms lateron, when a copy of Ext.X1 was brought to her residence, which is marked in evidence as Ext.X2. 16. Entire issues revolve around the legality of Ext.X1 agreement. Therefore an indepth analysis of the oral evidnece tendered by the witnesses and also the terms recited in Ext.X1 is warranted. 17. The preparation of Ext.X1 from the residence of defendant No.1 on 31.07.2000 was not disputed by the parties on either side. Admittedly, the husband of the plaintiff who is a R.F.A. No. 143 /2004 17 lawyer, reduced the terms arrived at in the long drawn discussions into writing as dictated by the parties to him. Except the 5[th] defendant all other legal heirs of Mr.Pareed Bava had taken part in the discussions and deliberations, in the presence of two of their paternal uncles and some other respectable persons of the locality at the relevant time when Ext.X1 was drawn. 5[th] defendant was not present there but, her husband was available. 18. According to the plaintiff, she being the youngest among the children, 6[th] defendant has more affection to her and when she started weeping on watching the wordy altercations among her children on the question of division of shares of the assets of her deceased husband, with a view to get things at rest, she affixed her signature in Ext.X1. According to the 5[th] defendant, she was not availabe at the 1[st] defendant’s residence on 31.07.2000 when Ext.X1 was prepared, but her husband was present. According to her, she had never authorised her husband to sign Ext.X1, on her behalf. According to the plaintiff, lateron, copy of Ext.X1 was taken to 5[th] defendant’s residence at Malappuram and there the terms were ratified by her, by affixing her signature therein. But, the 5[th] defendant failed to state about any compelling circumstances in which she was constrained to sign Ext.X1. R.F.A. No. 143 /2004 18 19. Admittedly Ext.X1 was scribed by the husband of the plaintiff on 31.07.2000. According to the plaintiff, her husband had affixed her signature unknowingly of the intention of defendants 1 to 3 to put it into execution at a later point of time. Husband of plaintiff was a lawyer. He failed to mount the box to depose on the incidents that happened at the 1[st] defendant's house on 31.7.2000 when Ext.X1 was drafted by him. Plaintiff being the master of the suit and execution of Ext.X1 being disputed by her, she ought to have examined her husband who was present there and had also taken a vital role in drafting it. Being a lawyer he cannot be said to have been ignorant of the legal consequences of affixture of signature in a document like Ext.X1. 20. Defendant No.6, the mother of the plaintiff was alive till 13.08.2003 and was the apt person to say about her affection towards PW1 as contended by her, but she was also not examined. According to PW1, her mother (D6) was a cancer patient and when she started to weep on watching the indifferences on allocation of the shares in the assets of her deceased husband, she was constrained to put her signature in Ext.X1. According to PW1 signature was affixed involuntarily and unknowingly of it's contents. According to her, meagre shares in the immovable properties R.F.A. No. 143 /2004 19 belonging to her father have been set apart to herself and defendants 4 and 5 and they were also denied to have shares of profits from the business concerns run by their deceased father. 21. Signature having not been affixed by defendant No.5 in Ext.X1 on 31.07.2000, she was evidenced as unavailable at the 1[st] defendant’s residence on that day. Admittedly, her husband was available there and had taken part in the conversations and discussions regarding division of shares of immovable properties belonging to deceased Hajee.P. Pareed Bava held on that day and also affixed signature to the terms of the agreement reduced to writng by the husband of the plaintiff. According to 5[th] defendant, her husband was not authorised by her to sign, but was constrained to do so by the circumstances that was then existing there. Therefore, only on examination of him as a witness, the circumstances that compelled him to sign Ext.X1 could have been brought to light. Therefore, non-examination of the husband of the 5[th] defendant as a witness is crucial and has it's own bearing for loss of the case by the plaintiff. 22. The 5[th] defendant though has admitted the presence of her husband at the house of the first defendant where discussions and deliberations allegedly had taken place on 31.07.2000 to R.F.A. No. 143 /2004 20 arrive at terms on allocation of shares of assests of late Hajee.P.Pareed Bava, had taken a stand that she had not authorised him to sign the agreement executed. 23. Admittedly the terms in Ext.X1 was ratified by the 5[th] defendant from her house at Malappuram by affixing her signature in the true copy made available to her and marked in evidence as Ext.X2. Her specific stand was that affixture of signature in Ext.X2, was unknowingly of its contents. 5[th] defendant was not an illiterate person or one without the normal intellect to understand things. Therefore, a person having the capacity to read and grasp the terms scribed in Ext.X1 cannot raise a claim after affixture of signature on it that, signature was authored, unknowingly of the meaning and spirit of it’s contents. If someone states so, it is only something short of imprudence. Fifth defendant has no claim that out of force or compulsion from any outsiders that she affixed her signature in it. She also does not have a claim that she being illiterate was unable to read and understand it. The trial court did not give credit to the version tendered so by the fifth defendant in that regard. This Court has also no difference of opinion. 24. 3[rd] defendant examined as DW1 and one among the uncles and one among the respectable persons of the locality who R.F.A. No. 143 /2004 21 were present at the residence of the 1[st] defendant respetively examined as DW5 and DW4 has categorically deposed that the settlement talks were peaceful and terms have been arrived at on allocation of shares of the assets of deceased Pareed Bava amicably and signed by all present, when reduced into writing by the husband of the plaintiff. Therefore, the trial court can only be taken to have appreciated the evidence on record in it's proper perspective and arrived at a finding that signatures were affixed on Ext.X1 by all the legal heirs on free consent and volition and the elements of coercion and fraud alleged, have not played any role to vitiate it. 25. The very nature of recitals in Ext.X1 attribute to it, the colour of an agreement. Agreement presupposes meeting of minds of the parties to it. The factum of her presence at the residence of the 1[st] defendant and affixture of signature in Ext.X1 having been admitted by PW1 and allegation of an element vitiating her free consent to surrender to the terms having not been established by cogent and reliable evidence, this Court is hesitant to uphold it. 26. The further question that requires consideration is whether registration of an agreement of the nature as Ext.X1 is compulsory under Section 17 (1) (b) of the Registration Act, 1908 R.F.A. No. 143 /2004 22 to make it legal and admissible. The learned counsel for the plaintiff contended vehemently that registration is a mandatory requirement to make Ext.X1 valid and enforceable. Yellapu Uma Maheswari And Another Vs. Buddha Jagadheeswararao and Others [(2015) 16 SCC 787], has been cited by the learned counsel for the appellant, wherein it has been held by the Apex Court: “(2) The whole process of partition contemplates three phases i.e, severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e, severancy of title, nature of possession of various shares but not for the primary purpose i.e, division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. xx xx xx. 15. It is well settled that the nomenclature given to the document is not the decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of R.F.A. No. 143 /2004 23 right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of - the considered opinion that Exhibits B 21 and B 22 are not admissible in evidence for the purpose of proving primary purpose of partition.”(emphasis supplied) 27. The learned counsel has also cited Chinnappareddigari Pedda Muthyalareddy V. Chinnappared digari Venkatareddy and others [AIR 1969 AP 242(FB)] to rest his contention that evenif the terms of partition are incorporated in an unregistered document, it is inadmissible in evidence and cannot be looked into for being convinced of the terms of the partition. The dictum was laid down by a larger bench of the High Court of Andhra Pradesh in the above case and it reads: “34. In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be R.F.A. No. 143 /2004 24 looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family - who from thence onwards, hold it as co tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members of the joint family of an unequivocal intention to separate, see for instance, Suraj Narain v. Iqbal Narain, (1912) 40 Ind App 40 (PC), Giraj Bai v. Sadashiv Dundhiraj, AIR 1916 PC 104 and Raghavamma v. Chenchamma, AIR 1964 SC 136. This communication of intention could be done orally or by a notice in writing to the other co-parceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.” (emphasis supplied) 28. The crux of the argument advanced by Sri.Krishnanunni, the learned Senior Counsel was that being an unregistered document, Ext.X1 is inadmissible in evidence. According to him, Ext.X1 was an agreement executed by all co-owners of the R.F.A. No. 143 /2004 25 property and a reading of the terms agreed to by the parties while executing it gives an indication that, rights in immovable properties have been accrued to the parties to it and therefore, it undoubtedly would fall within the ambit of a compulsorily registrable document as contemplated under Section 17 of the Registration Act, 1908 and it being unregistered, is inadmissible in evidence as envisaged under Section 49 of the Act. It is reiterated by the learned counsel that the document ought not to have been relied on by the court even for proving primarily that a division of shares of joint property had already been taken place by metes and bounds. According to the learned counsel, even for collateral purpose of establishing severance of status and nature of possession by various sharers also, the document being not impounded by paying the stamp duty with penalty payable thereon, cannot be relied upon. 29. It is convincingly established from the above that nomenclature of the document is not decisive of the admissibility of the document, rather, the nature and meaning of the transaction discernible from the recitals incorporated therein. The manner in which the defendants intended to treat Ext.X1 is well discernible from their pleadings. Defendants 1 and 2 have stated in paragraph 5 of their written statement: R.F.A. No. 143 /2004 26 “5. After the death of Pareed Bava discussions and deliberations for partition went on at the instance of Abdul Rassak and Kassim brothers of Pareed Bava. All the males and females directly or through their husbands took part in those discussions. At last two more respectable persons by name M.S.M. Lebba and V.M. Abbas also took part in the last round of talk on 31.07.00. That day plaintiff, her husband Haneefa Rawther, who is an Advocate, all but 5[th] defendant were present. Husband of 5[th] defendant Mohammed Nazer, a lawyer turned Bank Manager, as representative of 5[th] defendant was also present. The discussions took place at the residence of the 1[st] defendant. All agreed for partition. The agreement was written in the handwriting of plaintiff's husband Haneefa Rawther. The properties were agreed to be partitioned as contained in the agreement. 5[th] defendant later ratified the agreement by signing a photocopy of the agreement. The original of the agreement and the photocopy in which the 5[th] defendant signed are kept under safe custody of the mediators. The parties are bound by that agreement. Properties were demarcated as per agreement by survey at the supervision of the mediators except item Nos.2 and 3 (shown in Schedule B also). The partition deed was to be registered within 15 days of the agreement. The partition deed was prepared. Plaintiff and defendants 4 and 5 were informed of it and requested them to go over to the SRO for registration. But they did not turn up. Hence defendants 1 to 3 and 6 jointly R.F.A. No. 143 /2004 27 registered the deed of partition. These defendants are in possession of the properties allotted to them exclusively.” 30. What is discernible from the above was that the properties were agreed by the parties to be partitioned as per the terms incorporated in the agreement and by affixing their signatures thereto, the parties to it cannot say that they are not bound by those. It is also evidenced that the properties except B schedule properties (item Nos.2 and 3) were demarcated by survey at the supervision of the mediators and a partition deed was agreed to be registered based on terms thereunder, within 15 days of the agreement. 31. It is apposite to have Section 17 of the Registration Act extracted hereunder:- “17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:— (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether R.F.A. No. 143 /2004 28 in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.” 32. Sri.T.J Michael, the learned counsel on behalf of the 3[rd] defendant in the suit urged on the contrary, that the court below is correct and justified in treating Ext.X1 as a genuine document and relied on it to pass the judgment under challenge. According to him, Ext.X1, is only a family arrangement reduced to writing by the R.F.A. No. 143 /2004 29 family members intending to use it as proof of what they had agreed out of consensus and it needs to be registered only when the right under the arrangement intended by the document is accrued in their favour. According to him, on the basis of the terms recited in Ext.X1, rights in the proposed allotment of shares in the immovable properties having not been accrued to the parties, there is no merit in canvassing that it being an unregistered document is inadmissible in evidence and liable to be discarded. The learned counsel has also relied on Tek Bahadur Bhujil v. Debi Singh Bhujil and others [AIR 1966 SC 292] to strengthen his argument, wherein the Apex Court has held : “12. 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 R.F.A. No. 143 /2004 30 would be a document of title declaring for future what rights in what properties the parties possess. xx xx xx” (emphasis supplied) 33. The Apex Court has made it clear in the portion emphasised above that only when rights under a document have been accrued to the parties as per the arrangements arrived at concensually, without any further action being resorted to, it will be a compulsorily registrable one under Section 17(1)(b) of the Act. Therefore, what actually transpired by the recitals in the document needs a discussion here. 34. The recitals in Ext.X1 decisive of the nature of it are ## extracted hereunder: “1) മാതാവിന് നീക്കിവച്ചിരിക്കുന്ന പണം പരേതന്റെ സഹ ർന ോദരൻ വി അബ്ദുൽ റസാഖും ചേ ന ബാങ്കിൽ നിക്ഷേപിച മാതാവിൻറെ ആവശ്യാനുസരണം ഉപയ ോഗിക്കേണ്ടതാണ് . 2) രണ്ടായിരാമാണട ആഗസറ്റ മാസം മൂന്നാം തീയതി മുതൽ ബി പട്ടികയക്ക നീക്കിവെ ച്ച മണ്ണെ ണ്ണ വ്യാപാരം ടിയാൻ നടത്തേണ്ടതും 15. 8. 2000 നുള്ളിൽ ഈ ഉടമ്പടി അനുസരിച്ചുള്ള വസ്തുക്കളുടെ പ്രമാണങ്ങളും (അളവുകളും) തിട്ടപ്പെ ടുത്തി കൈ മാറ്റം ചെ യ്യുന്ന മുറയ അന്നുവരെയുള്ള ലാഭ നഷ്ടങ്ങൾ തിട്ടപ്പെ ടുത്തി ടി വ്യാപാരത്തിന്റെ ഇടപാടുകാർ എ, സി പട്ടിക കാരനുമായി ബി പട്ടിക കാരൻ പങ്കിട്ടെടുക്കേണ്ടത്ആകുന്നു. 3) ഇന്നുമുതൽ മൂന്നര മാസത്തിനകം ബി പട്ടിക കാരൻറെ ഉത്തരവാദിത്വത്തിൽ നിലവിൽ സി പട്ടികയക്ക നീക്കിവെ ച്ച വസ്തുവിൽ നിന്നും മണ്ണെ ണ്ണ വ്യാപാരം മാറ്റി സ്ഥാപിക്കേണ്ടത് ആകുന്നു. 4) മണ്ണെ ണ്ണ ഡീലർഷിപപ, സ സ്റ്റോറേജ് ലൈ സൻസ് മറ്റു രേഖകൾ ക എന്നിവ ബി പട്ടിക കാരൻറെ പേ രിലേ ക മാറുന്നതിനാവശ്യമായ എല്ലാ രേഖകളും സമയാസമയങ്ങളിൽ ഇരുകക്ഷികളും മറ്റുള്ളവരും R.F.A. No. 143 /2004 31 ഒപ്പിട്ടുനൽകേ ണ്ടത്ആവുന്നു. 5) ടി സ്ഥലത്തിൻറെ തെ ക്കുഭാഗതത സ്ഥിതിചെ യ്യുന്ന ഏ പട്ടികയ നീക്കി വസ്തുവരെ നിലവിലുള്ള ഗെ യിറ്റിന്റെ വീതിയിൽ കുറയാതെ ഗെ യിറ്റിനെ നെ തുടർനന റ റോഡ് നിർമ്മിക്കുന്നതിനാവശ്യമായ ഏകദേശം നാല് സെ ൻറ് വസ്തു മാറ്റിവെ ച്ചാണ് ടി പറമ വീതിച്ചിട്ടുള്ളത്. 6) സ്ഥലങ്ങൾ അളന തിട്ടപ്പെ ടുത്തിയിട്ടില്ലാത് ം പ്രമാണങ്ങളിലുള്ള വസ്തുക്കളുടെ അളവുകളിൽ ഭീമമായ വ്യത്യാസം സംഭവിച്ചാൽ മ മൊത്തമായി ആയത് പരിഹരിക്കാൻ എല്ലാ കക്ഷികളും ബാധ്യസ്ഥരായിരിക്കും.” 35. Therefore, it is clear from the above extract that only an arrangement among the members of the family for division of shares of the assets of their deceased father was intended by the parties while arriving at the above terms and executing Ext.X1 and for the rights under the arrangement as such to be accrued in their favour, conditions referred to above, are required to be fulfilled. 36. Serial No.6 extracted above would make it clear that for the rights of the parties in respect of the shares arranged under Ext.X1 to be accrued in their favour, the properties as per Schedules A to G are to be identified and measured and in case any difference in extent is found during measurement, all parties are responsible for settling the issues in connection thereto. 37. As already stated, the recitals in Ext.X1 only indicate manifestation of the intention of the parties to have severance of R.F.A. No. 143 /2004 32 status with reference to their assets left by their deceased father. The factum that the terms of division of status have been reduced to writing by the husband of the plaintiff, is admitted by all. He is a lawyer by profession having knowledge of the legal consequences of affixture of signatures to the terms of the agreement drafted by him based on instructions by other heirs. The 4[th] defendant, the husband of 5[th] defendant was also a lawyer turned bank manager. The parties have also agreed for preparation of a partition deed in accordance with the terms recited thereto and registration of it at a later point of time. 38. Ext.X1 is the agreement for partition reduced into writing and signed by the family members, who are survivors of deceased Pareed Bava. As the nomenclature it bears, it is only an agreement among the survivors to sever their status as joint owners of the assets of deceased Pareed Bava. The recitals by which it commences is extracted hereunder : “ടി പരീതു ബാവ ഹാജി മരണപ്പെ ട്ടിട്ടുള്ളതും പരേതന് അവശേ ഷിച്ചിട്ടിട്ടുള്ള സ്വത്തു വഹകൾ ടി പരീതു ബാവ ഹാജിയുടെ സഹ ോദരങ്ങളായ പി. അബ്ദുൾ റസാഖ്, പി. കാസിം എന്നിവരുടെയും വടക്കയിൽ വി. എം. അബ്ബാസ്, മുണ്ടക്കൽ എം. എസ്‌. എം. ലബ്ബ എന്നിവരുടെയും സാന്നിധ്യത്തിൽ താഴെ പറയുന്ന പടികയിൽ വിവരിചിരികന പകാരം വ്യവസ്ഥകൾകക വിധേ യമായി താഴെ ഭാഗിച ടകവാൻ തീരമാനിച ഈ ഉടമടി എഴതിയിടളതാകന. ” (emphasis supplied) R.F.A. No. 143 /2004 33 Therefore, it is made clear that the terms incorporated thereunder are arrived at among the survivors of deceased Pareed Bava after due discussions and deliberations among them in the presence of elders of the family and some independent witnesses. It has been decided by the parties to have a division of the assets left by their deceased father, among them as per the arrangement incorporated thereunder. Accordingly, A Schedule has been agreed to be allotted to Abdul Jabbar, B schedule to Abdul Rahim, C Schedule to Noor Samir, D schedule to Khadeejakutty, E schedule to Ramla, F schedule to Sajida and G schedule to Fathima Hajiya. 39. The Apex Court has settled certain guiding factors in [ Kale and others v. Deputy Director of Consolidation and others] [AIR 1976 SC 807] to identify a family settlement. “(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangements may be even oral in which case no registration is necessary; R.F.A. No. 143 /2004 34 - (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Sec.17(1) (b) ?) of the Registration Act and is, therefore, not compulsorily registrable;(emphasis supplied) (5) 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 its 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 family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) 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.” R.F.A. No. 143 /2004 35 40. The portion emphasised above is of utmost relevance and application in the context on hand. It is pertinent to note that only when a family arrangement is reduced into writing, registration is required. To state more particularly, registration is required only when the written agreement incorporates terms liable to create or extinguish any rights in immovable properties in favour of parties signing it. If a document will not create or extinguish any rights in immovable properties, it will not fall within the purview of Section 17(1)(b) of the Act and therefore, registration is not required. 41. In Rangayya Gowder and Another v. Narayanaswami Gowder and others [1958 KHC 370] a suit for partition of the properties described in Schedule 3 of the plaint was sought for by filing a suit as O.S.No.52 of 1951 before the Subordinate Judge of South Malabar at Palghat. The case of the plaintiff therein was that their family and other defendants, with its ancestral nucleus and by joint exertions of all the members had by the year 1939 become entitled and were in possession of the properties described in Schedule 1. In that year, the members of the family also agreed orally to divide into three branches and the family properties were also divided into three shares. It was alleged by the plaintiff that pursuant to division of shares, the parties also took possession of R.F.A. No. 143 /2004 36 their respective shares subject to the liabilities therein and the document evidencing such arrangement is Ext.A1 produced in the suit. The three branches also acted upto the arrangement of partition and were in enjoyment absolutely of the properties so allotted. A partition deed was also executed as Ext.A2. 42. The defendant in the written statement filed disputed the right of the plaintiff to rely upon Ext.A1, for proving a division of the properties, it being an unregistered instrument. According to him, the rights of the parties are governed by Ext.A2. According to him, the mother of the plaintiff knew fully well about the family affairs and in consideration of the interest of her children, the plaintiffs and the wayward life of the 1[st] defendant, her husband has chosen to accept only cash after a consideration of all the circumstances. According to him, the valuation fixed and the shares allotted to each branch or persons under Ext.A2 is fair, equal and just and plaintiff can have no grievance whatsoever. According to the 2[nd] defendant the minor’s interest have been well safeguarded under different clauses of Ext.A2 and he had never exercised undue influence over the other family members. 43. The Subordinate Judge who has seized of the matter after a consideration of the oral as well as the documentary R.F.A. No. 143 /2004 37 evidence came to the conclusion that Ext.A1 evidencing a partition arrangement on 15.09.1939, is not admissible in evidence as it was not a registered one. Accordingly, the court found that by virtue of Ext.A2 alone, a partition was effected as between the various parties and that the rights of the various parties have been crystallised only under that document. Accordingly it was held that Ext.A2 being the only final legal partition as between the members of the family including the plaintiff, it was not open to the plaintiffs under law to reopen the arrangement under it for allocating shares to the plaintiffs and the 2[nd] defendant. Their remedy was to re-open the entire partition arrangement under Ext.A2 not only as regards themselves, and the 2[nd] defendant, but also as regards all the other members who are parties to the partition arrangement. 44. The suit having been framed in such a manner as pleaded by the plaintiff, for want of any reliefs claimed against the defendants who were other parties to the partition arrangement or against the properties in their possession, it was held that Ext.A2 cannot be set aside in part. It observed that the remedy of the plaintiff is to seek re-partition of the entire family properties and not merely of the properties allotted to the plaintiffs and defendants 1 to 3 alone. R.F.A. No. 143 /2004 38 45. It has been held by the Division Benches of Madras High Court in K. Mahammad Ghouse Sahib v. Jamila Bi and others [1950 (1) MLJ 151] and Gutta Radhakrishnayya v. Gutta Sarasamma [ 1950 (2) MLJ 338], having due regard to the law on the point that the fact that a provision was inserted enabling the parties to get a proper partition deed written up and registered, did not take away the document from the mischief of Section 17 of the Registration Act and that the document is not admissible in evidence unless it is registered. ## 46. The Apex Court has also held in the decision supra : “We respectfully follow the rulings quoted above. A perusal of the present document, Ext.A1, leaves no doubt in our minds that it creates an interest inpresenti in the properties covered by the same and therefore, it requires registration. It not having been registered, we agree with the learned Subordinate Judge that the document is not admissible in evidence” Therefore, the Apex Court has dismissed the appeal holding that Ext.A1 creating an interest in present in the properties covered by the same requires registration and it having not been registered, is inadmissible in evidence. Thus the finding of the Subordinate Judge was upheld. R.F.A. No. 143 /2004 39 47. In the case on hand, Ext.X1 as it’s nomenclature stands is an “ ഉടമ്പടി കരാർ” and by virtue of the recitals it incorporate, it will not form a document requiring compulsory registration under Section 17 (1)(b) of the Registration Act, 1908. Right will not accrue to the parties under it without further formalities being complied with. As insisted by the terms, measurement and several other formalities are yet to be complied with for the rights of the parties thereunder to be crystallized as on date when it stands executed. 48. In the context on hand, the dictum laid down by this court in Madhavan Ezhuthassan Vs. Sreedharan Ezhuthassan and Others [1990(1) KLJ 380] can be relied on to take a view that the arrangement envisaged by Ext.X1 is only a family arrangement and not an instrument of partition and therefore will not come within the purview of Section 17(1)(b) of the Registration Act, 1908. It being a mere agreement to sever the status of the parties signing its terms does not require registration. The relevant paragraph laying down the dictum is extracted hereunder: “12. Courts are always reluctant in disturbing family arrangements on technical grounds. As courts are expected to advance substantial justice between the parties, the endeavour R.F.A. No. 143 /2004 40 must always be to uphold it and not to discard it. If family arrangements are unsettled on technical or trivial grounds, it will lead to undesirable results and unending feuds among the members of the family. To avoid acrimony and strife among the members of the family the Court will accept the family settlement provided it is voluntary and not induced by fraud coercion or undue influence. The Supreme Court in Kale Vs. Director Consolidation (AIR 1976 SC 807: 1976 (3) SCR 202) went to the extent of saying that where the Courts find that the family arrangements suffers from a legal lacuna or a formal defect, the rule of estoppel is applied to shut out the plea of the person who being a party to the family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. Admittedly, plaintiff has affixed his signature in Ext.B13 and in Ext.A1 duplicate. The very fact that a duplicate copy was prepared and taken by plaintiff and that only the properties to be allotted to the share of the plaintiff have been shown separately shows that the arrangement was effected at his instance and initiative.” (Emphasis supplied) 49. The dictums of the Apex Court relied on by this Court in Madhavan Ezhuthassan supra also needs a special reference here. ## 50. In Maturi Pullaiah and another Vs. Maturi Narasimham and others (AIR 1966 SC 1836) the Supreme Court held; “Though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal R.F.A. No. 143 /2004 41 claims will suffice. 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 arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.” ## 51. In Ram Charan Das Vs. Girija Nandini Devi and others (AIR 1966 SC 323 ) the Supreme Court held thus: “The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who takes benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.” (Emphasis supplied) ## 52. In S.Shanmugam Pillai and Others Vs. K. ## Shanmugam Pillai and Others (1973 (2) SCC 312) , the Supreme Court observed; “If in the interest of the family properties or family peace the close relations settle their dispute amicably, the court will be reluctant to disturb the same. The courts R.F.A. No. 143 /2004 42 generally 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.” Therefore, the Apex Court has taken a liberal and broad view regarding the validity of a family settlement and the trend is to uphold and maintain it. 53. In the case on hand, the uncertainty on division of shares of the assets of late Pareed Bava was settled by the parties by arriving at the terms of division and executing an agreement for partition. The division as per Ext.X1 was agreeable for all parties and each of them had affixed their signatures to it voluntarily. Having taken part in the discussions and deliberations and having subscribed their signatures to the terms so arrived at, they cannot withdrew from those later contending that their free consent was not there while signing it. Coercion and undue influence were alleged as elements vitiating the execution of Ext.X1 but pleas with reference to those were neither raised in the plaint nor proved by the plaintiff by cogent and reliable evidence and therefore is only to be discarded. Under Ext.X1, rights having not been accrued to the parties in their favour, it can only be treated as a family R.F.A. No. 143 /2004 43 arrangement and therefore, not a document compulsorily registrable under Section 17(1)(b) of the Registration Act. Therefore, Ext.X1 is admissible in evidence and is a relevant document as far as severance of status of the parties and division of shares among them are concerned. A valid division of shares as per family settlement is not liable to be set unrest on the allegation that the shares allocated by it are inequitable. It has been held in Rangayya Gowder supra that a contention that a member has not been given any appreciable immovable properties and therefore, on that ground, the partition should be considered to be unfair, is not sound. In the case on hand though the affixture of signature in Ext.X1 was contended as involuntary being tainted with elements vitiating free consent such as coercion and undue influence, for insufficiency of pleadings in the plaint to sustain it, is only liable to be discarded. The court below is justified in dismissing the suit for partition relying on Ext.X1. Interference is unwarranted. Appeal fails for the reasons and is dismissed. Sd/- MARY JOSEPH JUDGE ab/ttb R.F.A. No. 143 /2004 44 ## APPENDIX APPELLANT’S EXHIBITS : NIL 3RD DEFENDANT’S EXHIBITS : ANNEXURE A1 : PHOTOCOPY OF REGISTRATION DEED No.3191/2007 ANNEXURE A2 : COPY OF DECREE IN O.S. No.75/01 ANNEXURE A3 : COPY OF LEDGER ABSTRACT OF ACCOUNT No.35.