Case: Tek Bahadur Bhujil Vs. Debi Singh Bhujil &amp; Others

1. This appeal, on certificate issued by the Assam High Court, is by Tek Bahadur Bhujil, brother of Dhanbir Bhujil, respondent No. 2, and uterine brother of Debi Singh Bhujil, respondent No. 1. Their mother was Beli Bhujilini, respondent No. 3, since deceased2. Respondent No. 1 instituted a suit on September 3, 1946, against the other three aforesaid persons, in the Court of the Assistant Political Officer, Khasi States, Shillong, for partition of hise in the property mentioned in Schedule A to the plaint, as well as hise of the business known as Gurkha Dairy at Mawprem, for separate possession of his suche by metes and bounds and for hise in the income of profits of the business since January, 1, 1943 to the date of the decree. He alleged in the plaint that he, Tek Bahadur and Dhanbir Bhujil were brothers and belonged to the same joint family centering round their common mother, defendant No. 3, who had come from Nepal about 26 years earlier. It was further alleged that the property in suit and the dairy business were acquired by the family in the name of Tek Bahadur, the eldest brother. Two other business were subsequently started. They were the Indiant House and the Dilkhosh Cabin, at Police Bazaar, Shillong. These businesses were in the name of Dhanbir Bhujil. It was stated that on December 31, 1942, the brothers decided with the consent of the mother to enjoy the properties and the businesses in a certain specified manner. The plaintiff and Tek Bahadur were to enjoy half and half the landed property and the dairy business, while Dhanbir was to enjoy the other two businesses. The mother was to enjoy the house property in Shillong Cantonment which had been purchased in her name. It may be mentioned that Dhanbir Bhujil and Beli Bhujilini were pro forma defendants and the real relief was claimed against Tek Bahadur, appellant3. The appellant contested the suit on various grounds, including the one that all the properties wered properties of his and that nobody else had any right, title or claim in them. The allegations in the plaint were not admitted and it was specifically stated :".........the mother was never or is the head of the family as alleged nor were the properties acquired by the family in the name of the defendant No. 1 as alleged in para 2 of the plaint."Of the issues framed, two issues were :"(1) Whether the properties in suit are joint properties of the plaintiff and defendant 1, to the suit, or thed property of defendant 1 alone?(2) Whether there was any division of the properties with separate possession and enjoyment as alleged?"The trial Court decreed the suit against defendant No. 1 holding that the properties in suit were joint properties of the plaintiff and defendant No. 1 and that there had been a division of the family properties with separate possession and enjoyment by the parties as alleged by the plaintiff4. Tek Bahadur, appellant, preferred an appeal to the Deputy Commissioner of United Khasi Jaintia Hills at Shillong. The appeal was dismissed. Tek Bahadur then went up in revision to the High Court of Judicature in Assam, under R. 36 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, as adopted and modified by the Assam Autonomous Districts (Administration of Justice) Regulation, 1952, as applied to the Administered Areas of Shillong. The High Court rejected the petition stating that it had no. force5. In support of the alleged division of properties in 1942, thet relied on the agreement, Exhibit 3, which incorporates the statements of the three brothers and concludes with the expression :"We the three brothers having agreed over the above statement and having made our own statements in the presence of the Punch called by us and signed and kept a copy of each of this document as proof of it. The witnesses in this matter as scheduled are true."

Reasoning: 7. The contention of the appellant about the agreement, Exhibit 3, being does not a record of a family arrangement is based on several grounds. Debi Singh, respondent 1, was a uterine brother of the appellant and respondent 2 and therefore could not be a member of their family. There could not be a family arrangement between members of the family and a. The landed property, according to the evidence, was purchased from the money of their mother. There was therefore no. dispute about the title to this property. Similarly, there was no. dispute that the two businesses belonged to respondent No. 2.8. The first contention that respondent No. 1 was not member of the family was not raised in the Courts below. There was no. such plea in the written statement filed by the appellant, and consequently, there was no. such issueIt is obvious therefore that he must have made such a claim in 1942 when the family arrangement is alleged to have taken place. Respondent No. 1 claimed a share in this property. Possibly, respondent No. 2 also claimed a share, though he possibly also claimed individual rights in the two businesses. There did, therefore, exist disputes about the properties with respect to which the brothers came to certain agreementWe need not say therefore anything further about the applicability of the Registration Act in that area, but we have, however, still to consider the contention for the appellant that the agreement Exhibit 3 did require registration. If we agree with him on this point, it would be necessary for the final disposal of the case that at finding on the question of the applicability of the Registration Act in the area be recorded by the trial Court or the first appellate Court. We, however, do not agree with the contention of the appellant that the agreement Exhibit 3 required registrationThese observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is. Similar assumption can be made in the present case even on the basis that the property was purchased with the moneys of the mother. How they got some antecedent title in the property is not for us to determine. The plaintiff (respondent No. 1) alleged that the property belonged to the family. The appellant did not allege that it could not have belonged to the family as it was purchased with the moneys of the mother but claimed that it was hisd property. In the circumstances, it can be assumed that the parties recognized the existence of such antecedent title to the parties to the property as was recognized by them under the family arrangement. It is not so much an actually existing right as a claim to such a right that matters14. The observations further indicate that by family arrangement no. title passes from one in whom it resides to the person receiving it and as no. title passes no. conveyance is necessaryThis Court extended the principle behind the family arrangement to other cases which were not covered by the earlier observations. It is urged, on the basis of these further observations, that registration is necessary for a document recording a family arrangement regarding properties to which the parties had no. prior title. These observations apply to a case where one of the parties claimed the entire property and such claim was admitted by the others and the others obtained property from that recognized owner by way of gift or by way of conveyance. In the context of the document stating these facts this Court held the real position to be that the persons obtaining the property from the sole owner derived title to the property from the recognized sole owner and such a document would have to satisfy the various formalities of law about the passing of title by transfer. The facts of the present case are different. The agreement Ex. 3, does not recognize that any of the brothers had the sole and absolute title to any of the properties dealt with by them. On the other hand the recitals in the document indicate that the three brothers considered the property to be joint property of all of them. The fact that in the present proceedings the evidence shows that the landed property at Mawprem was purchased from the moneys of the mother does not affect the nature of the arrangement arrived at between the three brothers.