JUDGMENT
D.M. Patnaik, J.
1. In this second appeal the defendant challenges the lower appellate Court’s judgment decreeing -the plaintiff’s suit for delivery of vacant possession of the house.
2. Plaintiff’s case is, Syed Mahamad Noor was the cousin brother of Syed Abdul Raheman, the father of the plaintiff and the defendant. Rokhia Bibi was the wife of late Syed Mahamad Noor. She had no issue through him. She adopted the plaintiff and the latter took her care staying in the disputed house, which belonged to Rokhia Bibi. Out of love and affection she executed a registered deed of settlement on 6-10-1959 and also put the plaintiff in possession of the house. Ths defendant and his father late Abdul Raheman were also signatories to the said deed. Since the defendant created disturbance in her possession, she filed the suit for declaration of title and possession.
3. The defendant contested the case by pleading that the house in question belonging to his father and the plaintiff had no interest in the property. After her marriage she was occasionally coming and staying as a guest. After the death of his father in the year 1963, he possessed the house in question in his own right, title and interest. With regard to the document, he pleaded that the same was not acted upon. In the alternative he pleaded to have acquired title by adverse possession, in view of his forcible possession since 1963.
4. The lower Court held the document to be a Will and further held that the deed was not acted upon and therefore dismissed the suit. The lower appellate Court on the other hand held the document to be a deed of family settlement and that it conveyed a valid title in favour of the plaintiff. So far as adverse possession by the defendant is concerned, it held that the defendant’s period of possession failed short of the statutory period since the defendant proved his possession only from 1968 and therefore decreed the plaintiff’s suit.
5. Mr. Deepak Mishra, learned counsel for the appellant raised two points. First, that the document (Ext. 1) was never acted upon since, according to him, there is no evidence except that of the plaintiff that she accepted the gift and that Rokhia Bibi delivered possession of the property and second, that the recitals in the document (Ext. 1) that the plaintiff accepted the deed and was put in possession of the property in question would not be sufficient to discharge the onus on the plaintiff to prove such acceptance and possession since it is mandatory under the provisions of Sections 150 and 152 of the Mahamedan Law that the same has to be proved by other evidence independent of such recitals in the document and, according to the learned counsel. Section 92 of the Evidence Act would not be a bar to adduce evidence to disprove the case of such acceptance and possession. Incidentally it was argued relying on the finding of the lower Court that Rokhia Bibi had no title to the property in question.
Mr. S. S. Rao, learned counsel for the plaintiff-respondent, on the other hand, supported the judgment of the lower appellate Court.
6. The points raised by Mr. Mishra are intrinsically connected with the conclusion of this Court to follow, that instead of meeting the points so raised by Mr. Mishra, it would be apposite at this stage to first examine the correctness of the finding of the learned lower appeallate Court that Ext. 1, deed, is a family settlement and not a Will as held by the lower Court.
I have no doubt in my mind that the document is a family settlement out and out and the reason for holding the same as such given by the learned lower appellate Court is found to be wholly acceptable to me. We may now proceed to examine the correctness of the approach of the lower appellate Court in this regard.
7. The plaint avers that Ext. 1 is a deed of family settlement. The deed itself mentions it as “GHARA SMANDHA NIRUPNA PATRA” meaning ‘a deed of settlement in respect of the house in question’. The defendant in the written statement did not dispute the deed as a deed of family settlement except pleading that Rokhia had no title to pass and the deed was not acted upon. In other words, the defendant remained silent as to the nature of the deed. The lower Court commi tted an error in holding the document to be a Will which was nobody’s case. The lower appellate Court held the document to be a family settlement for the reasons that, the deed created a right in the property in favour of the plaintiff in presentee and secondly, the parties there to including Rokhia Bibi relinquished their right of disposition in the property and thirdly, the document itself indicated possession of the plaintiff.
8. On examination of the document, I find that it fulfils all the requirements of a family settlement. As to what is a ‘family settlement/ and in what manner and to what extent it binds the parties’ to such settlement has been authoritatively held in the case of M. N. Aryamurthi v. M. L. Subbaraya, reported in AIR 1972 SC 1279 where the Court held that a family arrangement to be binding on the parties must be an agreement among the members of the family and such agreement must be for the benefit of the family, that the agreement should be with the object of either compromising doubtful or disputed rights or for preserving the family property or the peace and security of the family by avoiding litigation or for saving its honour and lastly, such settlement would result in establishing or ensuring amity and good will among the relations.
9. In an earlier decision of the Supreme Court in the case of Ramacharan Das v. Girijanalini Devi, reported in AIR 1966 SC 323, the Supreme Court had liberally stretched the scope of family settlement when it held that every party who takes the benefit under the deed need not necessarily be shown to have under the law a claim to the 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 claim on some other ground as, say, affection’.
10. Keeping the above proposition of law in view, and the relation between the plaintiff and the defendant who are natural brother and sister and further keeping in view that Ext. 1 has not only been signed by Rokhia Bibi but also by the brother, father and the defendant himself, recognizing the right of Rokhia Bibi in the property in question and the admission of the defendant that Rokhia also executed another deed same as that of Ext. 1 in favour of Pyara Bibi, the wife of the defendant, the only irresistible conclusion is that all the family members wanted to preserve the family peace and amity and also had a clear intention for avoiding future differences in respect of the said property.
For these reasons the finding of the learned lower appellate Court that Ext. 1 is a family settlement is confirmed. .
11. Form the judgment of the lower appellate Court it, is apparent that an argument was advanced that a family settlement is ‘foreign to Mahomedan Law’. This is not correct. It is well settled that a family arrangement among the Mahomedans governed by the Personal Law of the Muslims is binding between the parties inter se, the same way an arrangement binds the Hindus since the principles Governing such family settlement is the same. Reference may be made to the case of Md. Amin v. Fhakir Ahmed reported in AIR 1952 SC 358. A question before the Apex Court was with regard to the validity of the transfer of interest in the property of a minor by a de facto guardian. Though the Court held that such a transfer was void vet in para 14 of the judgment the Court recognized the deed as a family settlement.
The next question is to what extent Ext. 1. the deed is binding against the defendant.
12. The deed is found to be a genuine document so far as execution by Rokhia Bibi is concerned. The plea of fraud and coercion etc. have been negatived. The defendant and his father admitted the antecedent title of Rokhia in respect of the disputed house by putting their signatures in the deed. Therefore, defendant No. 1 admitted the undisputed title of Rokhia to the property. Though there was no pending dispute then with regard to the suit house, but it is definite that Rokhia under that deed relinquished her property in favour of the plaintiff the same way, she relinquished her interest in respect of the rest half of the suit house in favour of the defendant by a registered document on the same day which fact has never been denied by the defendant. Thus, Rokhia relinquished her right in respect of the property in favour of the plaintiff as well as the wife of the defendant. This shows she wanted to maintain the family peace and amity by executing the two deeds. Considering all these aspects with regard to the document and circumstances of the case, the learned lower appellate Court arrived at the right conclusion that the document was a family settlement and was binding on the defendant. Therefore, the contention of Mr. Mishra that the deed is a gift deed is rot accep table. We may next examine the contention of Mr. Mishra that Ext. 1 as a gift deed was not acted upon. I am conscious that in view of my finding this would be unnecessary but a legal point having been raised touching the validity of a gift under the Mahomedan Law and a gift under the Transfer of Property Act, it is rather necessary to deal with the point.
13. The submission of Mr. Mishra that the plaintiff has failed to prove delivery of possession which is an essential condition for validity of a gift under the Mahomedan Law and that such proof should have been independent of the deed Ext. 1 cannot be accepted. The reason being, once a transfer in fact . has been effected even by a Mahomedan, but under the Transfer of Property Act which has been made applicable to them, provisions of the statute law shall override the provisions of the personal law of the Mohamedans. This has been so held by the Apex Court in the case of Radhakrishna Laxminarayan Toshniwal v. Shridhar Ramachandra Aishi and others reported in AIR 1960 SC 1368. where the Court held in paras 10 and 11 of the judgment as follows:
” But in our opinion the transfer of property where the Transfer of Property Act applies has, as was held by the Privv Council also, to be under the provisions of the Transfer of Property Act only and Mohamedan Law of transfer of property cannot override the statute law As we have said earlier wherever the Transfer of Property Act is in force Mohamedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act.”
Therefore, the contention of Mr. Mishra that the disposition of the disputed property by Rokhia in favour of the plaintiff by way of gift as claimed in this suit should have been in accordance with the provisions of Mohamedan Law and that Ext. 1 is of no consequence is not correct and therefore cannot be accepted. Once the property in question is transferred under a deed which is registered, the question of the plaintiff acting upon the said deed as provided under the Mohamedan Law does not arise because as per the decision in the case of Radhakrishna (supra) and the Transfer of Property Act would override the provisions of the Mohamedan Law so far as it relates to the gift of immovable property (in the present case the deed is held to be a settlement).
However, the learned lower appellate Court on evidence found the plaintiff to have been in possession of the house in question ana this is also to some extent admitted by the defendant when he stated that the plaintiff used to come and stay in the house as a guest, though her staying in the house in question as a guest cannot be believed in the facts and circumstances of the case. Therefore, the submission of Mr. Mishra that there is no evidence of plaintiff taking possession of the house in question pursuant to Ext. 1 is not acceptable. Since the document is a genuine document and has been validly executed, it binds the parties and creates a title in favour of the plaintiff. The subsequent cancellation of the deed by defendant and his father is of no consequence since it cannot divest the plaintiff of her title to property so vested on her under Ext. 1.
14. Once It is proved that the plaintiff has a title to the property on the basis of Ext. 1, her title could be defeated only after the defendant could prove the acquisition of title by adverse possession.
The learned lower appellate Court having discussed the evidence and for adequate reason believed the possession of the defendant from 1968 and I do not find any reason to differ from this finding. The defendants having failed to prove his possession for the statutory period, learned lower appellate Court has correctly decreed the plaintiff’s suit having rejected defendant’s plea of acquisition of title by adverse possession. No other substantial question having been raised, I find there is no merit in the appeal and the same is dismissed, but in the facts and circumstances of the case parties to bear their costs.