Premlall Seal and ors. Vs. Sm. Basanti Seal and ors. - Court Judgment

D.K. Seth, J.

1. Mr. Bachawat had raised two questions viz. (i) whether without the pleadings and without any issue being framed and without any evidence being led a new case of family arrangement could be made out by the Court on the basis of a letter of complaint (Ext-J) by the admitted owner against the alleged tenant-licensee being the son of the owner governed under Dayabhaga School of Hindu Law; and (ii) whether Ext-J could create or extinguish any right in favour of such son in respect of property, which is, admittedly, valued more than Rs. 100/- in view of Section 17(1)(b) of the Registration Act and could Ext-J be read to contradict the contents of a registered document (Ext-1) having regard to Section 91 of the Evidence Act.

2. Mr. Sanyal had replied that Ext-J was not a document creating or extinguishing right in immovable property worth above Rs. 100/- but an evidence to the creation of a family arrangement, between members of the family in order to avoid misunderstanding and troubles between themselves and for buying peace, which can very well be made orally in the form of a licence irrevocable without creating any new case not pleaded having regard to the evidence already on record and decided on the basis of the issues framed with regard to which parties had understood each others' case and went to trial in a case of an old Hindu joint family where the sons are treated as part of the family having right to reside in the ancestral home.

3. In elaborating their respective submissions, the learned counsel had drawn our attention to the various materials available on record and had elaborated those points through various other submissions, to which we would be making reference at appropriate stages.

4. Admittedly, the plaintiff, the father Radheshyam Seal, had instituted the suit for eviction of his son, the defendant Subal, on the ground of his misdemeanour alleged in the plaint claiming him to be a licensee in respect of the portion of the house allowed to be occupied by him on condition of good behaviour, since revoked on account of his misdemeanour. Admittedly, Radheshyam had created a trust in respect of the suit property and appointed himself and his wife as trustees with right to appoint further trustees or make such further declarations by the trustees. This document was executed on 1st September, 1937 (Ext-A). On 28th September, 1956, a further document (Ext-I) was executed by Radheshyam as trustee in which Subal was disentitled from the right title interest of or as a beneficiary under the trust while appointing his other two sons as beneficiaries thereof. Admittedly, there are allegations of misdemeanour of and ill treatment by Subal not only against the parents but also against his brothers as well as other members of the family being his nephew through his sister. Admittedly, several complaints were made by Radheshyam against Subal not only to the Police Authority (Ext-R, T, U & V) but also to the employer of Subal, namely, Ext-J & L. In Ext-J, a complaint made by Radheshyam against Subal to the employer of the latter, the misdemeanour of and ill treatment by Subal finds mentioned by Radheshyam. It is also pointed out in Ext-J that in order to buy-peace, Radheshyam had shifted Subal from the first floor of the premises to the back portion of the premises, which is exclusive from the other parts of the premises, but even then it did not prevent Subal from misbehaving with his parents for which Radheshyam complained time and again. This Ext-J was written in 1961. Ultimately, the suit for eviction was filed in 1962.

5. We have found from the pleadings that there was no suggestion or even evidence given in respect of the alleged ground of creation of family arrangement to support the finding of the learned Trial Court. There was no pleading at all. The deed (Ext-A) was executed on 1st September, 1937 (p-268). Admittedly, Radheshyam and his wife the beneficiaries, were the trustees, who, during their lifetime, were entitled by any deed or deeds with or without power of revocation make new appointment or by his or her Will appoint and in default of such appointment and so far as any such appointment shall not extend in trust for all the sons of the said Radheshyam Seal and Sm. Savitri Seal (p-271). On 28th December, 1956, the trustees, in terms of the power conferred on them under Clause (3) of Ext-A, executed a deed of appointment being Ext-I. Ext-I conferred the property described in Parts A and B of the schedule to the said Ext-I upon Parbati Sankar Seal and Hiralal Seal the other two sons of the trustees absolutely for ever and disentitled Subal Charan Seal to the extent he shall have no right, title or interest in the said properties (p-293).

6. It was contended that this alleged creation of family arrangement was effected during Puja in the year 1956 whereas the Ext-I was executed on 28th December 1956. If such arrangement was so created before 28th December 1956 by reason of the execution of Ext-I, such creation of family arrangement seems to have stood revoked. It was not alleged that it was created after 28th December, 1956. There was nothing to indicate from the conduct of the parties that the alleged creation of family arrangement during Puja 1956 was irrevocable or that the other brothers were given any other areas to occupy. On the other hand, Ext-I clearly indicates total disentitlement of Subal from the property, which is, included in Parts A and B of the schedule of the said deed. At the same time, we find from Ext-J that the father was complaining against Subal continuously which finds support from Exts-K and L. From Ext-M, it appears that the employer of Subal had addressed a -letter to Radheshyam informing him that within the permissible orbit of the Rules and Orders, the office had taken action against Subal. It further appears from Exts. R, T, U and V that Radheshyam had been making complaints against Subal to the Police Authorities. Thus from the conduct and intention of the parties as discussed above, it does not appear that any family arrangement could have materialised in favour of Subal.

7. Before we proceed further, in order to appreciate the situation, we may discuss the principle of law relating to family arrangement.

8. Kerr in his valuable treatise 'Kerr on Fraud' at p. 364 observed that: '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 (heir rights actually depend.'

9. In Halsburry's Law of England, Vol. 17, Third Edition at pp. 215-216, the essentials of the family settlement and the principles governing the existence of the same are described as:

'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 for the peace and security of the family by avoiding litigation or by saving its honour.

The arrangement 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 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.'

10. In Khunni Lal v. Gobind Krishna Narain, (1911) 38 Ind App 87, 102(PC), the Privy Council adopted the view that the transaction appears to be a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognising the right of the others as they had previously asserted it to the portion allotted to them respectively. It does not confer a new distinct title on each other. It is the duty of the Courts to uphold and give full effect to such an arrangement. This decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi v. Mt. Sohan Bibi AIR 1914 PC 44. In Sahu Madho Das v. Mukand Ram : AIR1955SC481 , the doctrine of validity of the family arrangement was extended to the farthest possible extent. There, it was held that a family arrangement is based on the assumption of antecedent title of some sort in the parties. The agreement acknowledges and defines that title while each party relinquishes all claims to property other than that falling to his share and recognises the right of the others to the portions allotted to them respectively. That explains why no conveyance is required. 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. In Ram Charan Das v. Girianandini Devi, : [1965]3SCR841 , it was observed that the object of family settlement is to settle existing or future disputes regarding property amongst members of a family. Such a settlement results in establishing or ensuring amity and goodwill amongst persons relationship with one another. That consideration having been passed by each of the disputes, the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. In Tek Bahadur Bhujil v. Debi Singh Bhujil, : AIR1966SC292 , it was pointed out 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. Similarly, in Maturi Pullaiah v. Maturi Narasimham : AIR1966SC1836 , it was held that even if (here was no conflict of legal claims but the settlement was a bona fide one, it could be sustained by the Court. It was also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. In S. Shanmugam Pillai v. K. Shanmugam Pillai, : [1973]1SCR570 , the entire case law was discussed and it was observed that if in the interest of the family properties or family peace the close relations had settled their disputes amicably, the Court will be reluctant to disturb the same. The Courts generally lean in favour of family arrangements.

11. After considering all these decisions in Kale and Ors. v. Deputy Director of Consolidation and Ors., : [1976]3SCR202 , the Apex Court while dealing with the creation of family settlement had occasion to observe that:

'9......... 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.

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10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(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;

(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) (Section 17(1)(b) ?) 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 anknowledges 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. Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds. At the same time, the family arrangement must be bona fide and effected to resolve family disputes. It must be a fair and equitable division or allotment or properties between the various members of the family. It must be done voluntarily. It is to be made amicably. It should not be induced by fraud, coercion or undue influence. It may be made orally without any registration unless the creation of the family arrangement is reduced to writing. It would not be registrable when it is a memorandum or piece of evidence of the family arrangement already made.

13. Now let us examine whether the above ingredients are satisfied in the present case from the materials on record. It appears that Subal had no antecedent title to the property. Admittedly, there was allegation of misbehaviour on his part and if it was done in order to avoid the same, then it cannot be said to have been done amicably. On the other hand, it would indicate some amount of inducement by coercion. There is nothing on record to show that there was any fair and equitable division or allotment of properties between the parties. We may examine the materials elaborately for arriving at the right conclusion.

14. Mr. Sanyal appearing for the respondent had placed reliance on this very decision in Kale & Ors. (supra) and contended that Ext-J is an evidence of the family arrangement created. The arrangement creates a licence irrevocable. But the question of irrevocable licence dealt with in Kale & Ors. (supra) was on the basis of Section 60 of the Indian Easement At read with Section 56 thereof. There, it was held that in order to be irrevocable, a licence must be coupled with transfer. Unless there is a transfer or grant the characteristic of irrevocability of the licence cannot be inferred. In this decision, it was held that when there is an easement and a licence is created irrevocably then there is a transfer in force. The transfer of property under the terms of partition deed assigns the family property to the parties. Section 60 of the Indian Easement Act does not necessarily limit the transfer within the meaning of Transfer of Property Act absolutely. It does not state that the arrangement does not effect transfer of property. In fact it is a kind of grant, which is effective by transfer. The family arrangement is a kind of partition. Partition is not a transfer but a grant with an essence of transfer. It is only the ascertainment or demarcation or specification of the specific share held by the parties which hitherto been joint and is identified and allotted to one of his co-sharers, which he jointly held with others. Therefore, no transfer understood in the sense of Transfer of Property Act is effected by partition. Only the share with reference to particular portion of the property is defined and identified to which he acquires the exclusive right with the extinction of the right of co-sharers thereof while his right with respect to the test of the property extincts in favour of the others. This is in fact crystallisation of the share hitherto held jointly. In the joint property admittedly such person had specified share in the whole of the property now defined, identified and circumscribed. It is this principle, which seem to have weighed with Court. But the partition is effected between co-sharers who are also owners of the property. There cannot be a partition persons who did not have any interest in the property. Having regard to the facts of this case, provisions of Indian Easement Act cannot be attracted. But we may not loose sight of the distinctive feature of family arrangement, which is something more subtle than partition, which is a kind of grant of a kind of easement. But this is to be established on facts. Here, as already stated, we are required to find out as to whether the ingredients of family arrangement have been established in this case. If a family arrangement can be established, then the question of irrevocability of licence would be redundant.

15. Next Mr. Sanyal wanted to assert that in this case the evidence discloses a creation of family arrangement, orally not required to be reduced to writing, the fact whereof is evidenced by Ext-J. He led us through the materials on record. We shall be dealing with this question applying the principles discussed above on the materials available on record.

16. On the other hand, Mr. Bachawat had relied on the decision in Kanda and Ors. v. Waghu AIR 1950 PC 68. In this decision, it was held that it is an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. In Eshenchunder Singh v. Shamachurn Bhutto, 11 MIA 7 at p. 20, Lord Westbury described it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. He then relied upon the decision in Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors., : AIR1954SC758 of the Patna High Court. In the said decision, it was held that Order 2 Rule 6 has to be stuck to where the defendants in his written statement sets up title to the disputed lands as the nearest reversioner, the Court cannot, on failure of the defendant to prove his case, make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant, that the defendant was holding under a shikmi settlement from the nearest reversioner. In Jugal Kishore Kundu and Ors. v. Narayan Chandra Kundu and Anr., : AIR1982Cal342 , this Court held that Court cannot make out a new case not made out in the pleading.

17. Admittedly, the defendant had all along attempted to make out a case of tenancy, which is completely inconsistent with the claim of title through family arrangement. On the other hand, he had attempted to claim title through adverse possession, which was declined. Therefore, the case of family arrangement is wholly inconsistent with the case made out by the defendant in the written statement. In fact, there was no attempt on the part of the defendant to make out a case of family arrangement. This was sought to be ameliorated by Mr. Sanyal with the expression 'irrevocable licence'. According to him, licence is a counter-part of tenancy and irrevocable licence is something in between. Tenancy or licence is determinable but when a licence becomes irrevocable then it confers title. Therefore, it is something different from tenancy or licence. It is a kind of title sought to be acquired through easement or otherwise or by prescription as the case may be.

18. A feeble attempt was sought to be made in evidence to establish family arrangement as was pointed out by Mr. Sanyal. Question No. 360 at page 96 of the Paper Book was put to PW 1, Parbati Sankar Seal. In answer to this question, he had pointed out Subal was not fully in possession of that portion--but there used to be quarrels between Subal and the parents. For the purpose of settlement of the dispute, one day during Puja in 1956, Subal came to his father and told to his father that thenceforward he would behave properly and would not misbehave and asked for forgiveness. Father permitted him to live on the ground floor and first floor in that building temporarily. But cautioned him that if he behaved indecently then he would have to leave the premises immediately and that very moment he may tell Subal to vacate and Subal agreed to do. Subal in his examination in answer to question 175 at page 152 had said thus:

'175 Q: What was the reason for your shifting from the second floor to the first floor?

A: The reason was this that on 24th December, 1956 I made a petition before the Court of Chief Presidency Magistrate for protection. A Police Officer from the Jorasanko Police Station and one of my elder brother Parbati Sankar Seal came to my father. Then the Police Officer said something to my father. Then my father told me that 'you see, I and your mother have become old and infirm, I have got to depend upon your brothers but they do not listen me. So it is better that you live in the first floor rear portion which is completely separate and exclusive so that no one can disturb you and there may not be anything unpleasant.'

Wife of Subal had also said in question Nos. 39 and 40 at page 189 thus:

39 Q: After you return Jasidih which year was that'A: I went to Jasidih in December, 1954. Thereafter, I came back in January 1955. We continued our stay there on the second floor for a further period of one year.

40 Q: That is to say upto the end of 1956?

A: I was told to live in the adjacent house towards the month of June 1956.'

19. In order to support this, some suggestion was made by the wife of Subal. In question Nos. 13 and 14 at page 183, the wife of Subal in answer to the respective question had said thus:

'13 Q: What was your relationship with your brother-in-law?

A: My mother-in-law did not like that I should talk with my husband's brother or the youngest brother and since after my marriage I did not talk with them?

14 Q: What was the attitude of Parbati Sankar Seal towards you at that time?

A: He did not behave with me properly; he used to show me various postures and also used to make certain audible sounds from his mouth; he also used to cut jokes on occasions including using obscene and vulgar languages.'

20. In the judgment under appeal, the allegations of tenancy were disbelieved by the Court. The attempt to establish acquisition of right through adverse possession was declined by the Court by rejecting the prayer for amendment. This Ext-J was purported to be interpreted to be an evidence establishing family arrangement in favour of Subal in respect of exclusive back portion of the premises. Admittedly, family arrangement can be made orally in between the members of the family. Even a member of the family, who may not have share or ownership in respect of the property can also be included in the arrangement for buying peace and a portion allowed to be occupied by him in the arrangement would create a right in his favour under the arrangement conferring right upon him by reason of vesting of that portion unto him. But these are to be determined on the basis of the materials available on record, evidencing the conduct of the parties and indicating their intention. Admittedly, Ext-J is hit by Section 91 Evidence Act when it seeks to contradict the ouster of Subal by virtue of the Deed executed on 28th December, 1956 (Ext-I). Similarly, Ext-J cannot create or extinguish title or interest in the property, which is admittedly. worth above Rs. 100/- on account of its being unregistered one. But then it can be treated as a piece of evidence for establishing the fact of family arrangement between the parties alleged to be created orally in favour of Subal, who had no share or title or interest in the property except as member of the family in the ancestral house.

21. Therefore, in order to establish the fact of family arrangement as was found by the learned single Judge, we are to examine the content of Ext-J for the purpose of discovering the intention of the parties, particularly, that of the settlor and from the evidence adduced by the respective parties to support or deny the creation of family arrangement orally entitling Subal to claim a licence irrevocable as claimed by Mr. Sanyal.

22. A licence is always revocable. But it is a family arrangement may being the form of licence, it becomes a settlement without necessitating any creation of document reducing the same in writing. Unless this creation of interest is reduced to writing, there is no necessity of registering the same. Therefore, we are to fall back on the contents of Ext-J and evidence adduced by the parties to decide the conduct and intention of the parties.

23. Ext-J is a letter of complaint. It contains vivid description of complaint of a parent against the son made to the employer in order to correct him. Shifting Subal to the back portion and allowing him to stay at the back portion was clone by Radheshyam to buy peace and bring about sense to his son. Subal also did not deny his misdemeanour. On the other hand, from question No. 367 put to PW-Parbati Sankar Seal and question No. 14 put to DW-Basanti Seal, the wife of Subal, making allegations of misdemeanour on the part of the brothers definitely lends support to the fact of misdemeanour and misbehaviour of Subal. Now it is to be examined that while complaining against his own son and seeking to buy peace, Radheshyam could have an intention to settle the property in favour of his sone permanently. The consideration was to buy peace. If peace was restored then we could have accepted the settlement or arrangement. But if it fails to buy peace, then it cannot be a settlement. In other words, it was a licence granted for buying peace and if it had worked and peace could have been restored and nothing else was done and the licence was not revoked and no suit for eviction was set, in that event, the arrangement would have matured into a family arrangement resulting into a settlement of property in favour of Subal. But this was not so. From question No. 360 put to PW-1, it appears that Subal was allowed to occupy the back portion of the property exclusively for the purpose of buying peace on condition that he would behave himself and in default the licence would be cancelled. This PW 1 was confronted by question No. 405. He had given the same answer as in question No. 360. There is nothing on record, neither any case was made out that with a disparate intention to get rid of the misdemeanour of Subal, Radheshyam had effected the family arrangement with an intention to settle him separately for buying peace. The constant complaint by Radheshyam against Subal leads us to hold otherwise than what Mr. Sanyal wanted us to believe.

24. For all these reasons, we are unable to persuade ourselves to agree with the contention raised by Mr. Sanyal. The judgment, and decree appealed against so far it relates to the evidence with regard to the family arrangement in favour of Subal is concerned is hereby set aside. Rest of the judgment is hereby affirmed.

Accordingly, the appeal is allowed.

There will be a decree in terms of prayer(a).

25. After the judgment was delivered in open Court, Mr. Sanyal prays for stay of operation of the judgment for a period of eight weeks. This is being opposed on behalf of the appellant.

26. After having considered the case, we hereby direct that the operation of the order remains stayed for a period of eight weeks from date.

Parties shall act on a signed xerox copy of the operative portion of this judgment, if applied for, upon usual undertaking.

R.N. Sinha, J.

27. I agree.