Swaminathan v. Koonavalli AIR 1982 Mad 276
S.A. No.1933 of 1977 decided on 26/06/1981
Headnote
Registration Act (16 of 1908) , S.17— Registration under – Unregistered document only recording earlier family arrangement and not effecting division in praesenti – It is admissible in evidence even if it is not registered. AIR 1966 SC 323. AIR 1974 Mad 321, (1976) 2 Mad LJ 30 and AIR 1966 SC 292, Discussed.AIR 1942 Mad 125, AIR 1963 Pat 62 and AIR 1918 PC 196, Referred.(Para8)
Cases referred-
Raghava Rao v. Gopala Rao, AIR 1942 Mad 125 Para 4
Bibi Aziman v. Saleha [AIR 1963 Pat 62] Para 4
Ramcharan Das v.Girja Nandini Devi [AIR 1966 SC 323] Para 6
T. Ramayamma1 v. T. Mathummal [AIR 1974 Mad 321] Para 6
Seethalakshmi Ammal v. Ramesham [(1976) 2 Mad LJ 30] Para 6
Rangaswami Gounden v. Nachaippa Gounden [AIR 1918 PC 196] Para 6
Tek Bahadur Bhujil v. Debi Singh [AIR 1966 SC 292] Para 7
Judgement
RAMANUJAM, J. – The unsuccessful plaintiffs in O.S. No. 308 of 1970 on the file of the District Munsif, Palani, are the appellants herein. They filed the said suit for partition and separate possession of their 1/4th share in the suit property with past and future mesne profits. Their case was that the suit property formed part of the joint family properties, that 1/4th share of the suit property was allotted under a family arrangement, dated 19-9-1953, to their father, that in pursuance of the said family arrangement, their father was receiving his share of the rent till his death in 1967, and that as it is no longer possible to enjoy the property in common, it should be divided by metes and bounds and their share allotted to them.
2. Defendants 1 to 4 were the lessees and they merely filed a written statement setting out the terms of the lease in their favour. Defendants 5 to 6 alone contested the suit. Their case was that their father Palanimalai Pandaram and the plaintiff‘s father Kandasami Pandaram divided their properties by metes and bounds on 6-3-1953, by a registered instrument and from that time onwards Palanimalai Pandaram and Kandasami Pandaram became divided in status. The said Palanimalai Pandaram subsequently acquired the suit property under a sale deed dated 27-3-1940 and as such Kandasami Pandaram, the plaintiffs‘ father, had no interest or‘ right in the suit property. They also denied the truth and the validity of the family arrangement dated 19-9-1953 and stated that the family arrangement, Ex A. 1 dated 19-9-1953 being unregistered cannot confer on the plaintiffs any rights as they had no pre-existing title in the suit property.
3. Thus the main question to be decided by the trial court was whether the family arrangement, Ex A. 1, dated 19-9-1953, on the basis of which the plaintiffs claim title to 1/4th share in the suit property was true and whether the said document being unregistered is admissible.
4. The trial court found that the family arrangement Ex. A. 1, was true, but however, held that as the plaintiffs‘ father, Kandasami Pandaram, had no antecedent title to any portion of the property, Ex. A. 1, should be taken to create an interest in the suit property and, therefore, Ex. A. 1 is not admissible in evidence, as it is unregistered, In support of the said view as to the admissibility of Ex. A. 1. the trial court relied on the decisions in Raghava Rao v. Gopala Rao, AIR 1942 Mad 125 and Bibi Aziman v. Saleha [AIR 1963 Pat 62]. Since the trial court held that Ex. A. 1 is inadmissible in evidence the suit was dismissed.
4-A. On appeal, the lower appellate court also took the view that Ex. A. 1 the family arrangement creates an interest in the suit property in favour of the plaintiffs‘ father who had no pre-existing right therein, it requires registration and, therefore, Ex. A.1. cannot be admitted in evidence, In this view, the lower appellant Court dismissed the appeal.
5. This second appeal filed by the plaintiffs has been admitted on the following substantial question of law:- Whether Ex. A. 1 is a family arrangement and if so, whether it is not admissible for want of registration?
6. As already stated, both the courts below have taken the view that as the plaintiff‘s father Kandasami Pandaram did not have any pre-existing or antecedent title in the suit property in respect of which the family arrangement Ex. A. 1 was entered into, the family arrangement should be taken to create an interest in the suit property in favour of the plaintiffs‘ father and, therefore, it is inadmissible in evidence for want of registration.
The learned counsel for the appellants submits that the view taken by the courts below is erroneous in the fact of the decision in Ramcharan Das v.Girja Nandini Devi [AIR 1966 SC 323], T. Ramayamma1 v. T. Mathummal [AIR 1974 Mad 321], and Seethalakshmi Ammal v. Ramesham [(1976) 2 Mad LJ 30]. In the first case, the Supreme Court held that a family arrangement is not a transfer or creation of interest in the property within the meaning of Sec. 37 (a) of the U.P. Court of Wards Act, 1912, that courts give effect to a family settlement upon the broad and general ground that its objects is to settle existing or future disputes regarding property amongst members of a family, that the word ‗family‘ in this context is not to be given a narrow meaning and that it is not necessary as has been held by the Privy Council in Rangaswami Gounden v. Nachaippa Gounden [AIR 1918 PC 196] that every party taking benefit under a family settlement must necessarily be shown to have under the law, a claim to a share in the property and all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or claim or even a semblance of a claim on some other ground. as say affection. The above decision has been considered and followed by this court in T. Ramayammal v. T. Mathummal [AIR 1974 Mad 321].
In that case, it was held that a person who benefits under a family arrangement, need not necessarily have a share in the family property and that it is sufficient that the parties are related to each other in some way and have a possible or even a semblance of claim to that property. Seethalakshmi Ammal v. Ramesham [(1976) 2 Mad LJ 30], also followed the said decision of the Supreme Court and held that a family arrangement stands on a peculiar footing and having regard to the purport of such an arrangement courts will more readily give assent to a bona fide family arrangement than avoid it and that considering the object of the family arrangement courts have placed the settlements on such a high pedestal that they have gone to the extent of laying down that principles which apply to the case of an ordinary compromise between strangers do not equally apply to the case of compromise in the nature of family arrangements, and that since there is no transfer of interest as envisaged by the Transfer of Property Act in a family arrangement, family arrangement can be arrived at orally.
7. However, there is another decision of the Supreme Court reported in Tek Bahadur Bhujil v. Debi Singh [AIR 1966 SC 292] wherein it was held that when a family arrangement is brought about by a document such a document requires registration as it would amount to a document of title declaring for future what rights and what properties the parties possess. But the same case has laid down that if a document is no more than a memorandum of what had been agreed to by the parties earlier, it does not require registration as required by Sec. 17 of the Registration Act, for a family arrangement as such can be recorded in writing as a memorandum of what has been agreed upon. Thus, the question whether the document Ex. A. 1, requires registration will depend upon the fact whether Ex. A. 1 is a record of family arrangement which has been arrived at earlier or whether it actually operates in praesenti as a family arrangement.
8. The learned counsel for the respondents contends that Ex. A. 1 itself brings about a division on the basis of the family settlement and therefore, it should be by itself taken to convey interest in the suit property and, therefore it is inadmissible for want of registration, However, I am not inclined to agree with the learned counsel for the respondents that the documents itself effects a division in pursuance of the family arrangement which was brought about by the panchayatdars. The recitals in the document clearly indicate that there was an earlier decision by the Panchayatdars and as per the decision, the properties have been divided and the document is brought into existence only to record the earlier division Ex. A. 1 nowhere says that it itself effects a division in praesenti. Therefore, the document can be taken to be one which records an earlier transaction of partition suggested by the Panchayatdars. In this view, of the matter, I have to hold that Ex. A. 1 is admissible in evidence even though it has not been registered.
9. In this case both the courts below have held that Ex. A. 1 is inadmissible in evidence and the plaintiffs cannot claim any rights thereunder. Now that this court has found that Ex. A. 1 is admissible in evidence, the matter has to go back to the lower appellate court for a decision on the other issues.
10. The Second Appeal is therefore, allowed and the matter is remitted to the lower appellate court for fresh disposal in the light of the observations made by this court.
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