IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 RSA.No. 219 of 2004 AGAINST THE JUDGMENT AND DECREE DATED 31.7.1996 IN O.S.NO.47 OF 1995 OF THE MUNSIFF'S COURT, CHENGANNUR. THE JUDGMENT AND DECREE DATED 27.11.2003 IN A.S.NO.206 OF 1996 OF THE ADDITIONAL DISTRICT JUDGE – I COURT, MAVELIKKARA. APPELLANT/2ND DEFENDANT/APPELLANT REJI.P.MATHEW, PEROORKAVILAYA, POOVAKKADU VEEDU, NEDUVERAMKODE.P.O., ALA THEKKUM MURI, ALA VILLAGE, CHENGANNUR. BY ADV. SRI.P.C.JOSEPH PAZHEPARAMBIL RESPONDENTS: PALINTIFF &DEFENDANTS 2 TO 5-RESPONDENTS 1 -5: 1. REMI JOSEPH KUMPALATHU, KIZHAKKETHILAYA RIJABHAVAN VEEDU, EROOR THEKKUM MURI, KEERIKKADU.P.O., PATHIYOOR VILLAGE, KARTHIKAPPALLY TALUK. 2. REENI ANIYAN KUNJU, KUZHIYATHU PADEETHATHIL VEEDU, KOLLAKADAVU.P.O., CHERIYANADU VILLAGE, CHENGANNUR. 3. MARIYAMMA THOMAS, PEROORKAVILAYA POOVAKKADU VEEDU, NEDUVARAMKODU.P.O., ALA THAKKUM MURI, ALA VILLAGE, CHENGANNUR. 4. ELIZEBETH JOHN, ALINTE VADAKKETHIL VEEDU, PUTHIYAKAVU, MAVELIKKARA VILLAGE. 5. SHERLY P.MATHEW, PEROORKAVILAYA POOVAKKADU VEEDU, NEDUVARAMKODU.P.O., ALA THEKKU MURI, ALA VILLAGE, CHEGANNUR TALUK. R1 BY ADV. SRI.N.ASHOK KUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2008, ALONG WITH R.S.A.NOS.225 & 227 OF 2004, THE COURT ON 05/11/2008 DELIVERED THE FOLLOWING: I.A.NO.444/2004 IN R.S.A.NO.219/2004 DISMISSED 05/11/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------------- R.S.A. NOS.219, 225 & 227 OF 2004 --------------------------------------------------- Dated this the 5th November, 2008 JUDGMENT These Second Appeals arise out of the suit for partition filed by the first respondent as O.S.No.47 of 1995 on the file of the court of the Munsiff, Chengannur. The trial court decreed the suit and passed a preliminary decree for partition. The first defendant filed an Appeal challenging the judgment and decree of the trial court. The second defendant filed a Memorandum of Cross Objection as I.A.No. 670 of 2003 while defendant Nos. 4 and 5 filed another Memorandum of Cross Objection as I.A.No.671 of 2003. The appellate court dismissed the Appeal as well as the Cross Objections. Against the judgment and decree of the lower appellate court, the first defendant filed R.S.A.No. 225 of 2004 and the second defendant filed R.S.A.Nos. 219 of 2004 and 227 of 2004, the latter being against the Memorandum of Cross Objections. 2. The suit was filed for a declaration that document No. 390 of 1995 of SRO, Chengannur is not binding on the plaintiff and for partition of the plaint schedule properties. The parties are Indian Christians. The plaintiff claimed 1/5th share in the properties after satisfying 1/3rd share due to the first defendant. The plaintiff and defendant Nos. 2 to 5 are R.S.A.NOS.219, 225 & 227 OF 2004 :: 2 :: the children of the first defendant and deceased Mathew. Mathew died on 23.01.1995. It is not disputed that the first defendant would be entitled to 1/3rd share in the properties. 3. The plaintiff contended that she is entitled to 1/5th share of the 2/3rd share after satisfying 1/3rd share of the mother as per Sections 32 and 33 of the Indian Succession Act. Document No.390 of 1995 (Ext.A1) was executed on 07.02.1995 on the 15th day of the death of Mathew. The plaintiff and the defendants are shown as parties to Ext. A1, but the plaintiff has not put her signature in that document. As per Ext. A1, the properties belonging to Mathew were divided into three shares among defendant Nos.1, 2 and 5. Defendant Nos. 3 and 4 are married daughters while the 5th defendant was unmarried at the time of execution of Ext.A1. 4. Defendant Nos. 1 and 2 filed a joint written statement and contested the case. According to them, the plaintiff is not entitled to a share since at the time of her marriage she was given sufficient ornaments and cash which represented the share in her father's assets. 18 cents of land belonging to the first defendant was given to the plaintiff at the time of her marriage. Rs. 25,000/- was given in cash. An extent of 11.3 Ares of land was agreed to be assigned in favour of the first R.S.A.NOS.219, 225 & 227 OF 2004 :: 3 :: defendant by deceased Mathew in lieu of the property gifted by the first defendant to the plaintiff. But before his death, the document could not be executed. A portion of the property was acquired by the Government. Deceased Mathew had several debts and he had also utilized Rs. One lakh brought by the wife of the second defendant as a share in their family property. A sum of Rs.50,000/- was obtained from the husband of the 4th defendant and it has to be returned. Any partition of the property can be had only after taking into account all these liabilities. Exhibit A1, according to defendant Nos. 1 and 2, is a family arrangement executed with the full knowledge and consent of the family members and therefore it is binding on the plaintiff as well. 5. The third defendant filed a written statement supporting the plaintiff and also made a counter claim. She stated that her signature in Ext.A1 was obtained by misrepresenting the facts. She was made to believe that she had to put her signature for the purpose of obtaining the solvency certificate to continue to run the ration shop which was being run by deceased Mathew. Under that impression, she put her signature in Ext.A1. She realised that she was defrauded only when the plaintiff refused to put her signature in the document. The third defendant would not have signed in Ext.A1 had it been made known to her that it was a partition deed or a family arrangement. R.S.A.NOS.219, 225 & 227 OF 2004 :: 4 :: 6. Before the trial court, the plaintiff was examined as P.W.1 , the first defendant as D.W.1 and the third defendant as D.W.2. The trial court held that there is no evidence to support the contention of the first defendant that the share due to the plaintiff out of her father's property was given at the time of her marriage. It was also held that the defendants failed to prove that the deceased had various debts. As regards the counter claim filed by the third defendant, the trial court held that defendant Nos. 1 and 2 failed to file any written statement to the counter claim and Order VIII Rule 10 of the Code of Civil Procedure would be attracted. On the merits, the trial court held that the third defendant was made to believe that she had to sign a document to get the solvency certificate and that she put her signature in Ext. A1 without knowing that it was a partition deed. It was held that Ext.A1 would not bind the third defendant as well. Accordingly, the trial court passed a preliminary decree declaring 1/5th share each to the plaintiff and to the third defendant out of the property after deducting 1/3 share due to the first defendant, the mother. 7. On appeal, the appellate court confirmed the findings of fact arrived at by the trial court. A contention was put forward by the second defendant/appellant in the appeal that a copy of the counter claim was R.S.A.NOS.219, 225 & 227 OF 2004 :: 5 :: not served on the defendants and it was served only on the plaintiff. He contended that the plaintiff and the third defendant colluded together in filing the counter claim. The court below rejected the contention raised on that aspect holding that the contesting defendants did not raise any contention in the trial court that they were not served with a copy of the counter claim and that the counter claim could not be considered on that ground. 8. Advocate Sri.P.C.Joseph Pazhaparambil, learned counsel for the appellant submitted that Ext. A1 is a family arrangement and therefore, even if the plaintiff did not put her signature in the document, it would be binding on her, if she was aware of the settlement. Learned counsel pointed out that the evidence in the case would indicate that all the children and mother were available in the family house on the date of execution of Ext.A1. He also pointed out that the counter claim cannot be looked into as defendants 1 and 2 were not served with a copy of the counter claim. 9. In answer, Advocate Sri.Ashok Kumar, learned counsel appearing for the first respondent-plaintiff contended that Ext. A1 is an outright partition and the facts admitted or proved would not indicate that a family arrangement, as evidenced by Ext.A1, came into existence. R.S.A.NOS.219, 225 & 227 OF 2004 :: 6 :: The counsel also pointed out that the evidence of D.W.1 would indicate that his contention is that as per law, the plaintiff as well as the third defendant are not entitled to any share, in which case, there is no meaning in contending that a family arrangement came into existence by which they relinquished their rights. 10. The nature of a family settlement or family arrangement was considered by the Supreme Court in various decisions. In Kale and others v. Deputy Director of Consolidation and others ((1976) 3 SCC 119), the Supreme Court held: “.. 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. .... 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, 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 R.S.A.NOS.219, 225 & 227 OF 2004 :: 7 :: 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, learned 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.” 11. The Supreme Court laid down the following propositions in respect of the essentials of a family settlement, in Kale and others v. Deputy Director of Consolidation and others ((1976) 3 SCC 119), as follows: “(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 arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are R.S.A.NOS.219, 225 & 227 OF 2004 :: 8 :: 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) of the Registration Act and is, therefore, not compulsorily registrable; (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.” 12. In Hari Shankar Singhania and others v. Gaur Hari Singhania and others ((2006) 4 SCC 658), the Supreme Court laid down the principles thus: “42. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet R.S.A.NOS.219, 225 & 227 OF 2004 :: 9 :: with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family. 43. The concept of “family arrangement or settlement” and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das v. Girjanandini Devi (AIR 1966 SC 323), xxxxx xxxxx xxxxx 53. Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements.” 13. In Hansa Industries (P) Ltd. And Others v, Kidarsons Industries (P) Ltd. ((2006) 8 SCC 531), the Supreme Court followed Kale's case and referred to the relevant passage in Halsbury's Laws of England and held that the family settlement must be voluntary and should not be induced by fraud, coercion or undue influence. 14. In Maturi Pullaiah and another v. Maturi Narasimham and R.S.A.NOS.219, 225 & 227 OF 2004 :: 10 :: others (AIR 1966 SC 1836), it was held that although conflict of legal claims in praesenti or in future is generally the condition for the validity of family arrangements, it need not necessarily be so and even bona fide disputes which may not involve legal claims would be sufficient to found a family settlement. If such an arrangement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts will more readily give assent to such an arrangement than to avoid it. 15. The decision in AIR 1966 SC 1836 was followed in Shambhu Prasad Singh v. Mst.Phool Kumari and others ((1971) 2 SCC 28) and in various other decisions. 16. In Mohd. Amin and others v. Vakil Ahmed and others ((1952 S.C.R. 1133), a deed of settlement embodying an agreement in regard to the distribution of the properties of a deceased Mohamedan, entered into by his two sons for themselves and one son representing his minor brother came up for consideration. It was held that the deed was not binding on the minor son as his brother was not his legal guardian. It was held that the deed was void and it cannot be held as valid merely because it embodied a family arrangement. It was held: R.S.A.NOS.219, 225 & 227 OF 2004 :: 11 :: “If the deed of settlement was thus void it could not be void only qua the minor plaintiff 3 but would be void altogether qua all the parties including those who were sui juris.” 17. There is no case that apart from Ext.A1, there was a family arrangement entered into earlier and that family arrangement was recorded in Ext.A1. On the other hand, the case of the contesting defendants is that Ext.A1 constitutes a family arrangement. Admittedly, the plaintiff is not a signatory to Ext.A1. There is no evidence to indicate that the plaintiff assented to the terms of Ext.A1. Ext.A1 is not binding on the plaintiff. The court below held that the third defendant put her signature in Ext.A1 without knowing that it was a partition deed. On facts, the court below held that the third defendant was given the impression that she had to put her signature for obtaining a solvency certificate. In the Second Appeal, these findings of fact cannot be interfered with. There is no material also to come to the conclusion that the court below erred in its conclusion on these aspects. 18. Ext.A1 was executed on the 15th day on the demise of the predecessor in interest of the parties. There is no evidence to indicate that either the plaintiff or the third defendant put forward a claim and a dispute arose which necessitated a family settlement or family arrangement to be entered into. The terms of Ext.A1 would indicate that it R.S.A.NOS.219, 225 & 227 OF 2004 :: 12 :: is an outright partition. It is recited in Ext.A1 that the plaintiff and defendants 3 and 4 agreed that they do not want any share in the properties as they were given properties earlier. The properties were divided into three shares among defendants 1, 2 and 5. Only an extent of 11.30 Ares was allotted to the first defendant and 11.70 Ares was allotted to the fifth defendant, while the second defendant got an extent of 97.26 Ares. Going by the extent of properties allotted, it can be seen that it was an inequitable division. It is not mentioned in Ext.A1 as to what properties were given to the plaintiff and defendants 3 and 4. The court below held that the defendants failed to prove that the share due to the plaintiff was given at the time of her marriage. 19. Advocate Sri.P.C.Joseph relied on the decision in Roshan Singh and others v. Zile Singh and others (AIR 1988 SC 881) in support of his contentions. To my mind, this decision would not be much helpful to the appellants. The Supreme Court held thus: “.. The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore, the arrangement does not fall within the mischief of S.17 read with S.49 of the Registration R.S.A.NOS.219, 225 & 227 OF 2004 :: 13 :: Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das case, it is assumed that the title 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.” In that case, there was a partition by metes and bounds of the agricultural lands and a disruption of the joint status. A residential house and another house were not included in the partition. The document executed by the parties does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. In that context, it was held that the document, though unregistered, can be looked into for the limited purpose of establishing a severance in status and for the purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. 20. To constitute a valid family settlement, it must be a bona fide one intended to resolve the family disputes, rival claims or even bona fide disputes, present or possible; the settlement must be voluntary and should not be vitiated by fraud, coercion, undue influence or any other vitiating circumstances. The terms of the settlement must be fair. An apparently outright partition effected by some of the sharers without the junction of any one or more of the sharers cannot be treated as a family settlement so as to bind the person who is not a signatory in the R.S.A.NOS.219, 225 & 227 OF 2004 :: 14 :: document. A party cannot be allowed to plead that there was a family settlement where some of the parties did not agree for the partition sought to be effected in the manner suggested by the former and further contend that such family settlement would bind even the persons who are not signatories to the document. A plea that there was a family settlement by execution of a document by some of the sharers cannot be allowed to be sustained so as to defeat the rightful claims of the other sharers. A family settlement cannot be allowed to be projected as an engine of oppression against the rightful claimants. It was declared by the Supreme Court in Mrs.Mary Roy v. State of Kerala (AIR 1986 SC 1011) that intestate succession to the property of Indian Christians in the territories of the former State of Travancore is governed by the provisions in Chapter II of Part V of the Indian Succession Act, 1925. The effect of Mary Roy's case cannot be allowed to be circumvented by putting forward a plea of estoppel or a plea of the existence of family arrangement or settlement so as to deny the legitimate shares due to the married daughters. Though it is well settled that a bona fide family settlement would be generally approved by the Courts, that such settlements are governed by the principles of equity and that technical considerations should not be adopted in the enforcement of family settlement, I am of the view that those principles would not enable some of the sharers to deny the legitimate rights of the married daughters in the family under the R.S.A.NOS.219, 225 & 227 OF 2004 :: 15 :: pretext that a family settlement was executed by the other members of the family. When the settlement is not bona fide, fair and constituting an equitable and fair distribution of