JUDGMENT
P. Thangavel, J.
1. Appeal No. 849 of 1992 is preferred against the judgment and decree dated 9.3.1990 in O.S.No. 92 of 1985 and C.R.P.Nos. 3294 and 3295 of 1993 are preferred against common judgment and decree dated 4.3.1993 in R.C.A.Nos. 44 and 45 of 1990 on the file of the learned Principal Subordinate Judge/Rent Control Appellate Authority, Tirunelveli.
2. The case of the plaintiff in O.S.No. 92 of 1985 is as follows: The suit properties and other properties were purchased by the plaintiff and Ebenesar Ammal by means of a registered sale deed dated 6.5.1955 for Rs. 8,500. In the partition that had taken place by means of a registered partition deed, the suit properties were allotted to the plaintiff. The plaintiff is the absolute owner of the suit properties and she has been in possession and enjoyment of the same in her own right by leasing them out to various tenants, including the 8th defendant, who was in occupation of the upstairs on a monthly rent of Rs. 500. The downstairs was leased out to South Eastern Road ways on a monthly rent of Rs. 400. The rents from the tenants were collected by defendants 5 and 6, who are sons of the plaintiff. The 7th defendant is also the son of the plaintiff. With a view to defraud the plaintiff, defendants 5 to 7 obtained the signature of the plaintiff in a document said to be Power of Attorney, authorising them to collect the rent from the suit properties. Such representation was also made by the husband of the plaintiff to obtain the signature of the plaintiff in the said document. Believing the abovesaid representation, the plaintiff had signed the said document, which was subsequently known in the month of July, 1983, that the said document to be is a partition deed. There was no need to partition the suit properties as the said properties were not owned by the plaintiff, her husband and defendants 5 to 7 as their common property. On enquiry it was found that the suit property had been allegedly given to the 5th defendant in the said deed. On the strength of said deed, the 5th defendant had purported to execute severaj sale deeds to defendants 1 to 4, which are not valid and binding on the plaintiff. The properties stand only in the name of the plaintiff and they were not transferred to the alleged transferees. The recitals in the partition deed that the suit properties were enjoyed jointly as joint family properties, cannot be correct since there can be no joint family in the Chiristian community. Therefore, the plaintiff had filed the suit to declare the partition deed dated 18.5.1981 as not valid and not binding on the plaintiff with regard to the suit properties and to set aside the same, for. recovery of possession of the suit properties from the defendants 1 to 4 and for costs.
3. Defendants 1 to 4 resisted the suit on the following grounds: The suit properties were purchased in the name of the plaintiff with the funds of her husband and sons. The suit properties were not leased out to tenants including the 8th defendant and South Eastern Roadways and rents were not collected by the plaintiff at any time before. There was a family arrangement between the plaintiff, her husband Asirvatha Nadar and her three sons, viz., defendants 5 to 7 on 18.5.1981 and in that family arrangement, the suit properties were allotted to the share of the 5th defendant. The suit properties belong to the 5th defendant absolutely and he was enjoying the same by leasing out to the 8th defendant and South Eastern Roadways. The other items of the properties standing in the name of the plaintiff were allotted to the 7th defendant, who is in possession and enjoyment of the same in his own right. The plaintiff did not question the allotment of the said properties to the 7th defendant. The properties standing in the name of the 7th defendant were given to another son of the plaintiff, viz., 6th defendant and the said properties have been in the possession and enjoyment of the 6th defendant in his own right. The family arrangement was made only after the properties have been enjoyed in common by the members of the family. The said family arrangement was written and registered and the said document was signed by the plaintiff. The 5th defendant was in possession and enjoyment of the suit properties by paying tax to the Municipality. The 5th defendant sold the properties allotted to his share in the family arrangement to the defendants 1 to 4 by means of registered sale deeds dated 3.5.1982, 4.5.1982, 10.5.1982 and 6.5.1982 for Rs. 20,000, Rs. 17,000, Rs. 32,000 and Rs. 20,000 respectively. Even prior to the execution of the above said sale deeds, agreements of sale were executed by, the 5th defendant in favour of defendants 1 and 2 on 19.2.1982 and 27.2.1982 respectively. After the execution of the abovesaid sale deeds the 5th defendant wanted to remain in possession of the suit properties for a period of one year and therefore, executed lease deeds dated 4.5.1982, 11.5.1982, 11.5.1982 and 4.5.1982 in favour of defendants 1, 4, 3 and 2, agreeing to pay monthly rent of Rs. 900, Rs. 700, Rs. 800 and Rs. 800 respectively. The 5th defendant vacated the premises after a period of one year and possession was taken by defendants 1 to 4. These defendants had spent about Rs. 10,000 and Rs. 6,798.27 towards repairing the properties purchased by them. The 1st defendant had issued a notice demanding a sum of Rs. 30,000 borrowed by the 5th defendant and aggrieved at the issue of notice, the 5th defendant had set up his mother to file this suit. The 8th defendant was also aggrieved and joined hands with the 5th defendant because of the issue of notice, followed by the filing of a petition in H.R.C.O.P.No. 72 of 1984 on the file of the Rent Controller (District Munsif), Tirunelveli. The suit is barred by time. Therefore, defendants 1 to 4 sought for the dismissal of the suit.
4. The 8th defendant resisted the suit claim on the following grounds: This defendant took the upstairs portion of the suit properties on lease from 2.5.1982 from the 5th defendant on a monthly rent of Rs. 500 and advance of Rs. 10,000 was also paid by the 8th defendant to the 5th defendant and a receipt was obtained from him. This defendant received a notice dated 1.7.1983 on 20.7.1983, stating that he had purchased the premises under his occupation and claiming damages for use and occupation at Rs. 2,000 per month. This defendant filed a petition under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act for depositing the rent from May, 1983 and the said proceedings is still pending. The 2nd defendant filed a petition to evict this defendant in H.R.C.O.P.No. 72 of 1984 and the same is also pending. This defendant is ready and willing to abide by the decision in the suit. This defendant is a statutory tenant and his right has to be protected under law. Therefore, the 8th defendant has sought for the dismissal of the suit.
5. The 9th defendant resisted the suit on the following grounds. This defendant is an unnecessary party to the suit. This defendant is a tenant of two items of premises mentioned in the plaint schedule. This defendant took the first item of the property on 19.10.1983 on a monthly rent of Rs. 1,200 from first defendant and also paid an advance of Rs. 4,800. The second item was taken on lease from defendants 3 and 4 on a monthly rent of Rs. 1,500 and an advance of Rs. 6,000 was also paid. This defendant is in possession and enjoyment of the leasehold properties continuously by paying rent. The lessors are the owners of the suit properties. Therefore, the 9th defendants sought for the dismissal of the suit.
6. The case of the petitioner in H.R.C.O.P.No. 143 of 1983 is as follows: He took the petitioner-mentioned property on lease for non-residential purposes in connection with Madurai Malai Murasu, Devi weekly and Kadiravan chemicals from the 1st respondent on 2.5.1982, agreeing to pay monthly rent of Rs. 500. An advance of Rs. 10,000 was also paid to the 1st respondent. The tenancy was according to English calendar month. An unregistered lease agreement dated 30.4.1982 was also executed by the petitioner to the 1st respondent.
The petitioner has been in possession and enjoyment of the petition-mentioned property by paying rent regularly to the 1st respondent and obtaining receipt till April, 1983. The petitioner received a registered notice dated 1.7.1983 on 20.7.1983 from the 2nd respondent, stating that the 2nd respondent has purchased the property under occupation of this petitioner. The 2nd respondent has demanded Rs. 2,000 per month as damages, for use and occupation from the petitioner. The petitioner has bona fide doubt as to the person to whom the rent has to be paid. Therefore, the petitioner has come forward with this petition to deposit the rent in court from May, 1983 in court until the doubt is removed by the decision of a competent court.
7. The 1st respondent has resisted the petition on the following grounds: This respondent has not executed a valid sale deed in favour of the 2nd respondent and, therefore, the sale in favour of the 2nd respondent is void. The 2nd respondent is not entitled to collect the rent from the petitioner and the petitioner is bound to pay rent only to this respondent since the premises was let out to the petitioner only by this respondent. This respondent alone is entitled to collect the rent as landlord for the premises under the occupation of the petitioner. There was no need to deposit the rent in court. It is under the said circumstances, the 1st respondent has sought for the dismissal of the petition.
8. The 2nd respondent has resisted the petition on the following grounds: The petitioner is not a tenant and he is only a trespasser. The petitioner was not in possession of the petition-mentioned property as tenant from 2.5.1982, agreeing to pay rent at Rs. 500 per month and by paying an advance of Rs. 10,000. The alleged agreement dated 30.4.1982 must be a fabricated document, created with fraudulent intention. The 1st respondent entered into an agreement with the 2nd respondent on 27.2.1982 after receiving a sum of Rs. 4001 to sell the petition-mentioned property to the 2nd respondent and the said property was sold by means of a registered sale deed dated 4.5.1982 by the 1st respondent to the 2nd respondent. The 1st respondent wanted to continue in possession of the property sold to the 2nd respondent for a period of one year from 4.5.1982 by paying a monthly rent of Rs. 800. This respondent agreed for the continuance of the 1st respondent in possession for a period of one year as a licensee. The 1st respondent is bound to hand over possession of the premises to this respondent after the expiry of the agreed period. The 1st respondent has no right to enter into any lease agreement with the petitioner and the petitioner was also not in possession and enjoyment of the property, as claimed by him. The 1st respondent did not hand over possession of the said property to the 2nd respondent as agreed and, therefore, a notice was send to the 1st respondent and the petitioner, claiming damages for use and occupation at Rs. 2,000 per month. The petitioner cannot safeguard his possession by depositing the rent in court and the 1st respondent cannot also claim right to receive the rent for the demised property. The petitioner is not a tenant entitled to remain in possession and, therefore, the 2nd respondent has sought for the dismissal of the petition with costs.
9. The case of the petitioner in H.R.C.O.P.No. 72 of 1984 is as follows: The petitioner has purchased the petition-mentioned property from the 1st respondent for a sum of Rs. 17,000 and he was put in possession of the said property. The 1st respondent has taken the abovesaid property on a monthly rent of Rs. 800. The tenancy is in accordance with English calendar month. The 1st respondent has to vacate and deliver possession of the petition-mentioned property on 4.5.1983 as per the agreement dated 4.5.1982. The petitioner came to know about the sub-letting of the said property by the 1st respondent to the 2nd respondent, while he went to the premises to take possession of the said property on 4.5.1983. Respondents 1 and 2 have created documents as if there was a lease of the said property by the 1st respondent in favour of the 2nd respondent even before the date of execution of sale deed by the 1st respondent in favour of the petitioner. The 1st respondent has no right to sub-lease the property to the 2nd respondent. The alleged lease of the petition-mentioned property on a monthly rent of Rs. 500 by the 1st respondent to the 2nd respondent and alleged receipt of advance of Rs. 10,000 from the 2nd respondent by the 1st respondent, are not binding on the petitioner. Rent was not paid to the petitioner and, therefore, there was wilful default in payment of rent. The petitioner-mentioned property is required for own use and occupation. Therefore, the petitioner has come forward with this petition for evicting respondents from the petition-mentioned premises on the ground of wilful default, sub-letting and own use and occupation.
10. The 1st respondent resisted the claim made in the petition on the following grounds: This respondent has not executed a valid sale deed in favour of the petitioner. This respondent is the owner of the petition-mentioned property. The 2nd respondent is the lawful tenant under the 1st respondent and there was no sub-letting. There is a dispute with regard to the ownership of the petitioner-mentioned property and, therefore, this Court has no jurisdiction to decide the title in this proceeding. The petitioner has to file a suit for declaration of his title. Therefore, the 1st respondent has sought for the dismissal of the petition.
11. The 2nd respondent resisted the claim of the petitioner on the following grounds: The 1st respondent is the owner of the petition-mentioned property and this respondent has taken the said property on lease for non-residential purposes, to carry on his business of Madurai Malai Murasu, Devi Weekly and Kadiravan Chemicals with effect from 2.5.1982, agreeing to pay monthly rent of Rs. 500. An advance of Rs. 10,000 was also paid by this respondent to the 1st respondent. The tenancy is according to English calendar month. An unregistered agreement of lease dated 30.4.1982 has also been executed by this respondent. This respondent has been in possession and enjoyment of the property mentioned in the petition by paying rent regularly to the 1st respondent and obtained receipt till April, 1983. The petitioner sent a registered notice dated 1.7.1983 to this respondent, wherein the petitioner has stated to have purchased the petition-mentioned property from the 1st respondent. The date of purchase of the property was silent in the notice and damage for use and occupation at Rs. 2,000 per month was also claimed. As there was bona fide doubt as to the person, who is legally entitled to collect the rent from this respondent, a petition under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of, 1960 was filed in H.R.C.O.P.No. 143 of 1983 on the file of the Rent Controller, Tirunelveli for deposit of rent and the same is pending. The petition has been filed to evict this respondent from the petition-mentioned premises by inventing some grounds. There was no sub-letting to this respondent by the 1st respondent. The requirement of the petition-mentioned premises for own use and occupation of the petitioner is not bona fide. This respondent is a lawful tenant and he has not committed any wilful default in payment of rent. Therefore, the 2nd respondent has sought for the dismissal of the petition with costs.
12. In O.S.No. 92 of 1985, the learned Subordinate Judge, after considering the material evidence placed before him, has come to the conclusion that the registered partition deed dated 18.5.1981 was not obtained from the plaintiff fraudulently, that the plaintiff should have signed the abovesaid partition deed only after knowing the contents of the said document, that the abovesaid partition deed is binding on the plaintiff, that the 5th defendant, who had become the owner of the suit properties, by virtue of the abovesaid partition deed, has every right to execute sale deeds with regard to the suit properties in favour of defendants 1 to 4, that the sale deeds executed by the 5th defendant in favour of defendants 1 to 4 for proper and valid consideration, are binding on the plaintiff, that the defendants 1 to 4 are in possession and enjoyment of the suit properties by leasing out portions of the same to the tenants, that the suit ought to have been filed by the plaintiff at the instigation of defendants 5 and 8, that the suit has been properly valued for purpose of court-fee and jurisdiction, that the suit is not barred by time, that therefore the suit filed by the plaintiff for declaration that the partition deed dated 18.5.1981 is not valid and not binding on the plaintiff with regard to the suit properties and for setting aside the same and also for recovery of possession, is liable to be dismissed. On such conclusion, the learned Subordinate Judge, dismissed the suit with costs. Aggrieved at the said judgment and decree, the plaintiff has come forward with appeal in A.S.No. 849 of 1992.
13. In H.R.C.O.P.Nos. 143 of 1983 and 72 of 1984, the Rent Controller, after considering the material evidence available, came to the conclusion that the lease agreement said to have been executed by the 1st respondent A. Jayaraj in favour of the petitioner Armugham on 4.5.1982, as seen in Ex.P-5, is not true, that the wilful default in payment of rent alleged by the petitioner A. Arugmugham, is also not true, that the alleged sub-letting by the 1st respondent Jayaraj in favour of the 2nd respondent S.P. Ramachandra Adityan is also not true, that the requirement of the petition-mentioned premises by the petitioner Arumugham for own use and occupation, is not bona fide and, therefore, eviction cannot be ordered as prayed for in the petition. On the abovesaid finding, the learned Rent Controller dismissed the petition filed by Arumugham, as petitioner in H.R.C.O.P.No. 72 of 1984 with costs. The learned Rent Controller also felt that there was a bona fide doubt as to person who is legally entitled to receive the rent from the petitioner (S.P. Ramachandra Adityan in H.R.C.O.P.No. 143 of 1983 who is the 2nd respondent in H.R.C.O.P.No. 72 of 1984) and, therefore, permitted him to deposit the rent in court, thereby allowing H.R.C.O.P.No. 143 of 1983.
14. Aggrieved at the abovesaid common order passed by the learned Rent Controller, Arumugham, the petitioner in H.R.C.O.P.No. 72 of 1984 and 2nd respondent in H.R.C.O.P. No. 143 of 1983, preferred R.C.A.Nos. 44 and 45 of 1990 on the file of the learned Rent Control Appellate Authority (Principal Subordinate Judge, Tirunelveli), who after hearing both the appeals together has come to the conclusion that Ex.P-5 dated 4.5.1982, is not genuine, that there is a bona fide dispute with regard to the title to the petition-mentioned property between the petitioner (appellant) Arumugham and the 2nd respondent (2nd. respondent) S.P. Ramachandra Adityan, that the said dispute has to be decided by a competent court, that the doubt that had arisen to the 2nd respondent Ramachandra Adityan is bona fide that the petitioner filed by the petitioner Arumugham cannot be maintained until the dispute with regard to the title is cleared, that there is no need to go into the merits of the matters as to whether there was wilful default in payment of rent, sub-letting and requirement of the petition-mentioned premises for own use and occupation is bona fide or not, that the 2nd respondent Ramachandra Adityan, who is the petitioner in H.R.C.O.P.No. 143 of 1983, is entitled to deposit the rent in court till the dispute is settled by a competent court. Accordingly the learned Rent Control Appellate Authority dismissed R.C.A.Nos. 44 and 45 of 1990 without costs. Aggrieved at the said common judgment passed by the Rent Control Appellate Authority Arumugham, the petition in H.R.C.O.P.No. 72 of 1984 and the 2nd respondent in H.R.C.O.P. No. 143 of 1984 and the appellant in R.C.A. Nos. 44 and 45 of 1990 on the file of the Rent Control Appellate Authority, Tirunelveli, as revision petition, has come forward with the above revision.
15. The point for determination in Appeal No. 849 of 1992 are:
(1) Whether the plaintiff is entitled to have a declaration that the registered partition deed dated 18.5.1981 is not valid and not binding on the plaintiff with regard to the suit properties and to have the said document set aside?
(2) Whether the plaintiff is entitled to recover possession of the suit properties from defendants 1 to 4?
16. The points for determination in C.R.P.Nos. 3294 and 3295 of 1993 are:
(1) Whether the petitioner in H.R.C.O.P. No. 143 of 1983 in entitled to deposit the rent in court under Section 9(3) of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960?
(2) Whether the petitioner in H.R.C.O.P. No. 72 of 1984 is entitled to eviction of the respondents from the petition mentioned property on the grounds alleged by him?
17. The suit O.S.No. 92 of 1985 was filed by A. Mariammal against S. Sudalaikannu Thevar and others for the reliefs of declaration that the partition deed dated 18.5.1981, is not valid and binding on the plaintiff with regard to the suit properties and to set aside the said partition deed and also for recovery of possession of the suit properties from defendants 1 to 4. The petitioner in H.R.C.O.P.No. 72 of 1984, who is the 2nd defendant in the suit, claims to have purchased a portion of the suit properties from the 5th defendant A. Jayaraj, who is one of the sons of the plaintiff A. Mariammal. K. Arumugham has filed H.R.C.O.P.No. 72 of 1984 for eviction of the 5th defendant and 8th defendant, who claims to be tenant of a portion of the suit property under 5th defendant. The 8th defendant, who is the petitioner in H.R.C.O.P.No. 143 of 1983 had filed the said petition for permission to deposit the rent for the premises in his occupation, in court, claiming to be a statutory tenant under the 5th defendant, in respect of which eviction is sought for by the 2nd respondent as owner thereof. In view of the said position, an order was passed by my Lord the Honourable the Chief Justice to hear Appeal No. 849 of 1992 and C.R.P. Nos. 3294 and 3295 of 1993 together and to. dispose of the said matters by this Court. Therefore, arguments of learned Counsel appearing on either side both in the appeal and the revisions were heard and a common judgment is passed.
18. Points: The plaintiff A. Mariammal has given birth to defendants 5 to 7 through her husband late Asirvatha Nadar. Defendants 8 and 9 are said to be tenants in possession of portions of properties described in the plaint. Defendant 1 to 4 claim that they are the owners of the suit properties by virtue of purchase made by them from the 5th defendant. Admittedly the suit properties and other properties were purchased by the plaintiff and her sister Ebenesar Ammal from Natesa Iyer for a sum of Rs. 8,500 as seen in Ex.A-2. A perusal of Ex.A-2 would disclose that the sale consideration was paid by the purchasers to Natesa Iyer at the time of execution of the sale deed and they were put in possession of the said properties. Though it was contended that the said properties were purchased with the income from Asirvatha Nadar, the husband of the plaintiff and defendants 5 to 7, there is no acceptable evidence on record on the side of defendants 1 to 4 to establish that the said properties were purchased with the income of the husband and sons of the plaintiff. In view of the said position, the contentions raised on behalf of defendants 1 to 4 as mentioned above, cannot be sustained.
19. Ex.A-3, dated 20.8.1968 is to copy of partition deed executed between the plaintiff and her sister Ebenesar Ammal with regard to the properties purchased under Ex;A-2. A perusal of Ex.A-3 would disclose that the properties mentioned in the abovesaid document were enjoyed by the plaintiff and her sister Ebenesar Ammal in their own right before the date of partition and in that partition the property described in the first schedule was given to the plaintiff. It is not in dispute that the suit properties from part of the first schedule mentioned therein. Therefore, it is evident that the suit properties had come to the share of the plaintiff on 20.8.1968 and she has been in possession and enjoyment of the said properties from that date, by letting out the same to others. It is not in dispute that the rent from the said properties were collected by her sons and municipal tax for the said properties were paid by them on her behalf. Ex.A-4, dated 18.5.1981 is the registered partition deed executed between the plaintiff, her husband Asirvatha Nadar and their sons, viz., defendants 5 to 7 with regard to the properties owned by them in that family. A perusal of Ex.A-4 would disclose that there was blending of properties standing in the name of the plaintiff, Asirvatha Nadar, her husband and their sons. It is admitted by both the parties that there can be no joint family with joint family properties in Christian families as in the case of a Hindu joint family, properties. It is also admitted by both the parties that there cannot be blending of properties standing in the name of a Christian female. Admittedly, the plaintiff Mariammal, her husband later Asirvatha Nadar and their sons, viz., defendants 5 to 7 are members of a Christian family, having faith in Christianity. Therefore, there can be no blending of properties standing in the name of the plaintiff, her husband, their children, to treat the said properties as joint family properties as in the case of a Hindu joint family. In view of the said position, the recitals found in Ex.A-4, dated 18.5.1.981, the registered partition deed executed between the plaintiff, her husband and their sons, cannot lead to the conclusion that there was, blending of properties standing in their names to treat the said properties as joint family properties as joint family properties of the said family. Therefore, the partition deed Ex.A-4 cannot help defendants 1 or 4 to establish that there was blending of properties standing in the name of the plaintiff along with other properties owned by the plaintiffs husband and sons and after blending of such properties, separate shares were given to the parties to the abovesaid document to claim absolute right and title.
20. Learned Counsel for the plaintiff relied on the decision in V.N. Sarin v. Ajit Kumar Popai and Anr. , wherein, it was held as follows:
Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purpose of disposition independent of the wishes of his former co-sharers.
It has also been held by the Apex Court in Ram Charan Das v. Girja Nandini Devi and Ors. , wherein it was held as follows:
…the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibi’s case A.I.R. 1914 P.C. 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden 46 I.A. 72 : A.I.R. 1918 P.C. 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. 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 a claim or even a semblance of a claim on some other ground as, say, affection.
21. The Apex Court in Kale v. Deputy Director of Consolidation , has held that the family arrangement may be even oral in which case no registration is necessary, that registration would be necessary only if the terms of the family arrangement are reduced into writing, that 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 and that in such a case, the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable. It has also been held in the said decision that 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, that 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.
22. The decisions referred to above would disclose that the family arrangement made between the members of a Hindu joint family does not create or extinguish any right in immovable properties and each party takes a share in the property and each party takes a share in the property by virtue of independent title, which is admitted to that extent by the other parties. For such family arrangement, it is evident from the abovesaid decisions that the parties must be related to one another in some way and should have a possible claim to the property or a claim or even a semblance of claim on some other ground, like affection. It is also evident from the cases cited above that a family arrangement by execution of a partition deed will not amount to transfer of right or title in the properties, which are subject matter of the said document.
23. But, in Kale v. Deputy Director of Consolidation , the Supreme Court was pleased to rely on the decision in Khunni Lal v. Gobind Krishna Narain (1911)38 I.A. 87, 102 (P.C.), wherein it was held as follows:
The true character of the transaction appears to us to have been 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 recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the courts to uphold and give full effect to such an arrangement.
In the light of the abovesaid decision of the Privy Council, the Supreme Court was pleased to hold as follows:
The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise “Kerr on Fraud” at p.364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
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 their rights actually depend ….
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 immoveable 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 to title but under the arrangement the other party relinquishes all its claims or titles in favour of such 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.
In the above decision, the Apex Court has also relied on the decision in Sahu Madho Das v. Mukand Ram (1955)2 S.C.R. 22, 42-43 : A.I.R. 1955 S.C. 481, 490, 491, wherein it was held as follows:
It is well-settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they, had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement.
The portions extracted in the decision referred to above would disclose that family arrangements can be made by a special equity peculiar to themselves but with bona fide intention: There can be no distinction in entering into such family arrangements by families having different faiths. Once a family arrangement is made with a bona fide intention to resolve family disputes and rival claims between the parties to that family arrangement with regard to the properties involved therein, it has to be given effect to without any murmur from any side irrespective of caste, creed or religion. The parties to such family arrangement, who are admitted to have relinquished their antecedent title of some sort in the properties in favour Of the other parties, have to recognise the rights of others with regard to the properties allotted to their shares in the family arrangement. It is, therefore, well settled that execution of any conveyance deed is not required with regard to allotment of properties under the family arrangement.
24. A perusal of Ex.A-4 would disclose that the properties involved in the family arrangement by means of a registered partition deed were enjoyed by the members of the family commonly, though the properties were standing in the individual names of the parties to the document. It is also mentioned in Ex.A-4 that the abovesaid family arrangement was entered and registered with the nomenclature of “partition deed” in order to avoid future litigation between the sons of the plaintiff and her husband Asirvatha Nadar, after their life time. It is also evident from the abovesaid document, that the family arrangement by means of a registered partition deed was arrived at in the presence of the well wishers of the members of the family. If the facts stated supra are taken into consideration, it is evident that the partition deed between the plaintiff, her husband and their sons had come into existence only with bona fide intention of avoiding future litigation between the defendants 5 to 7 who are the sons of the plaintiff and late Asirvatha Nadar after their lifetime. Of course, an attempt was made on the side of the plaintiff to establish that the document Ex.A-4 was obtained as a power deed from her without her knowledge. It is relevant to point out that Ex.A-4 was executed not by the plaintiff alone, but by her husband later Asirvatha Nadar and their three sons also. Though the plaintiff had pleaded in the plaint that her husband had also joined with the three sons in getting Ex.A-4 behind her back, she has given up such a stand while she was examined as P.W.1 before the trial court. The plaintiff, as P.W.1, would admit that she and her husband Asirvatha Nadar obtained the original of Ex.A-4 from the office of the Registrar after registration, though she denied knowledge of singing the abovesaid document by defendants 5 to 7. If that is so, the contents of Ex.A-4 ought to have been known to the plaintiff and her husband immediately on receipt of the registered partition deed from the office of the Registrar. The plaintiff has not given any reason as to why she had not taken any step to get the document cancelled immediately after it was obtained behind her back. But, she tried to explain by saying that she came to know about the obtaining of partition deed, alleging the same as power deed, only in the month of July, 1983. The said explanation is not quite convincing and as such cannot be accepted, since the document had been received by her and her husband immediately after registration. The fact remains that some properties standing in her name were also given to the 7th defendant under the partition deed Ex.A-4. Admittedly she had not taken any step to get the property allotted to the 7th defendant under Ex.A-4 so far, even though a suit has been filed for getting possession after declaration with regard to the properties allotted to the share of the 5th defendant. The plaintiff could have examined any one of the well wishers who had participated in the negotiation with regard to the family arrangement, to establish her contention. But, she has not chosen to examine anybody to substantiate her contention, except to examine herself to prove the said fact. Therefore, the case put forward by the plaintiff that Ex.A-4, dated 18.5.1981 was obtained behind her back, by her sons, describing it as a power deed, cannot be accepted. In view of the said position, the contention raised by defendants 1 to 4, out of whom defendants 1 and 2 were examined as D.Ws.1 and 2, that the plaintiff has come forward with this suit only with a view to defeat the rights of defendants 1 to 4 in the suit properties, which were got by them by means of registered sale deeds for proper and valid consideration, cannot be held to be unreasonable one.
25. Ex.B-1, dated 3.5.1982, Ex.B-2, dated 10.5.1982, Ex.B-3, dated 6.5.1982 and Ex.B-51 dated 4.5.1982 for 28,750, Rs. 32,000, Rs. 20,000 and Rs. 17,000 respectively would disclose that the 5th defendant had executed the abovesaid sale deed for proper and valid consideration in favour of defendants 1 to 4 and put them in possession of the said properties. It is not in dispute that the properties covered under Exs.B-1 to B-1 and B-51 are the suit properties, which were given to the 5th defendant under Ex.A-4, dated 18.5.1981 in the family arrangement between the plaintiff, her husband and defendants 5 to 7. Therefore, title to the suit properties had already passed to defendants 1 to 4 by virtue of the execution of the abovesaid sale deeds in their favour of the 5th defendant.
26. Learned Counsel for the defendants 1 to 4 has brought to the notice of this Court the decision in M.C. Chacko v. The State Bank of Travancore, Trivandrum to establish that there can be family arrangement in the Christian families also. In that case, K.C. Chako, father of the appellant agreed to hold himself liable for the amounts due by the High Land Bank to the Kottayam Bank on an overdraft arrangement between the two banks, by means of a matter of guarantee. The properties of K.C. Chacko had gone to the hands of the appellant, his brother, mother and sister by means of a family arrangement Kottayam Bank filed a suit against the High Land Bank, the appellant and others for recovery of the amount due from the High Land Bank and others on the strength of the letter of guarantee as having charge over the properties of K.C. Chacko. The suit was decreed by the trial court and the same was confirmed by the High Court The matter was taken the Apex Court, wherein the Apex Court was pleaded to recognise the family arrangement between the members of family of K.C. Chacko even though it was held by the Apex Court as follows:
It must therefore be taken as well settled that except in the case of a beneficiary under a trust created by a contract or in the case of a family arrangement, no right may be enforced by a person who is not a party to the contract.
With these observations, the suit filed against M.C. Chacko, the appellant, was dismissed. The decision of the Apex Court referred to above would lend support to the conclusion of this Court that there can be family arrangement with regard to the properties of members of Christian families also.
27. Learned Counsel for the plaintiff-appellant relied on the decision in Mohd Amin and Ors. v. Vakil Ahmad and Ors. to substantiate the case of plaintiff. In that case, it was held that a deed of family settlement to which a Mohammedan minor is a party represented by his brother as de facto guardian is void and not binding on the minor irrespective of the considerations that it benefited him or the arrangement was followed for a long period. Learned Counsel for the plaintiff-appellant also placed reliance on the decisions in Shaikh Safir Mohammed and Anr. v. Basir Mohammed and Sk. Md. Zafir v. SK. Amiruddin and Ors. in support of the case of the plaintiff. In both the abovesaid cases, properties were purchased in the name of one or the other members of the family of Mohammadans. It was held in both the cases that the relationship between the members of a Mohammadans family is distinct from that of members of Hindu family and the properties purchased as mentioned above, cannot be divided among the members of Mohammadans family. The decisions referred to above will not help the plaintiff to establish that the family arrangement made in between the plaintiff, her husband and sons, as seen in Ex.A-4, dated 18.5.1981 is not enforceable for the reasons already stated. In view of the said position, this Court holds that the plaintiff is not entitled to declaration that Ex.A-4 dated 18.5.1981 is not valid and not binding on the plaintiff and therefore not also entitled to have the said document set aside.
28. Learned Counsel for the defendant 1 to 4 would contend that the suit is barred by limitation since the plaintiff has not come forward with this suit within a period of three years from the date of execution of the said registered document. On the other hand, learned Counsel for the plaintiff would contend that the plaintiff came to know about the execution of the partition deed Ex.A-4, dated 18.5.1981 only in the month of July, 1983 and, therefore, the suit filed by the plaintiff on 3.5.1983 is within time. It has already been pointed out that the original of Ex.A-4, dated 18.5.1981 was received by the plaintiff and her husband after registration of the said document from the Registrar’s office as admitted by the plaintiff, as P.W.1, before the trial court. The plaintiff, who received the original of Ex.A-4, dated 18.5.1981, ought to have known about the contents of the said document since she is not an illiterate woman. Therefore, the plaintiff ought to have come forward with this suit within three years from 18.5.1981, the date of execution of Ex.A-4 or from the date of which the contents of the documents became known to her on receipt of the said document from the office of the Registrar. It is not the case of the plaintiff that the original of Ex.A-4 was not handed over to her and her husband immediately after registration. If that is so, she should have come forward with the suit for cancellation of the said document within the month of June, 1984. But the suit has been filed only on 3.5.1985. Therefore, the suit filed by the plaintiff is barred by limitation in view of Article 59 of the Schedule to the Limitation Act, 1963.
29. The learned Senior Counsel Mr. K. Alagiriswamy, appearing for the 8th respondent, contended that the trial court has made an observation that the 8th defendant is a subtenant under the 5th defendant and that the further observation that the suit has been filed by the plaintiff in collusion with defendants 5 and 8 are unwarranted and, therefore, the said observations have to be deleted or else it may have a bearing in the rent control proceedings initiated by defendants 2 and 8 and heard together with this appeal. As rightly contended by the learned Senior Counsel, there is no prayer in the plaint to declare that the 8th defendant is a subtenant under the 5th defendant and no issue has been framed to decide such fact. In the absence of any issue being framed, there is no need for the parties concerned to let in any oral evidence or produced documentary evidence to establish their status with regard to the occupation of the property by the 8th defendant. Therefore, the observation made by the trial court that the 8th defendant is a sub-tenant under the 5th defendant is not necessary and accordingly it is deleted. Likewise, there is no proof acceptable to the court in the suit that the plaintiff has come forward with this suit in collusion with defendants 5 and 8. Therefore, that observation is also deleted.
30. In view of the foregoing reasons, this Court holds that the plaintiff is not entitled to the reliefs prayed for in the suit. Therefore, this Court finds no ground to interfere with the conclusions arrived at by the trial court and as such the appeal is liable to be dismissed.
31. The fact remains that the petitioner in H.R.C.O.P.No. 72 of 1984 (2nd defendant) has purchased the property mentioned in the petition from the 1st respondent Jayaraj, who is the 5th defendant in the suit by means of a registered sale deed dated 4.5.1982 for a proper and valid consideration of Rs. 17,000. Of course, the 1st respondent Jayaraj has filed a counter stating that the sale deed executed by him in favour of the petitioner (2nd defendant) is not valid. It would disclose that the 1st respondent. Jayaraj has admitted the execution of the registered sale deed, but he has claimed the said sale deed as not valid. Jayaraj, who was examined as R.W.1 in the rent control proceedings, has not given any acceptable reason as to why the sale deed executed by him with regard to the petition-mentioned property in favour of the petitioner (2nd defendant) is not valid. Probably, he might have taken the abovesaid stand anticipating the filing of suit by his mother, questioning the partition deed dated 18.5.1981, in which the petition-mentioned property and other properties were allotted to the 1st respondent Jayaraj, who is the 5th defendant in the suit. It is relevant to point out that the abovesaid partition deed was held to be valid by a competent civil court even before the verdict was given in H.R.C.O.P.Nos. 143 of 1983 and 72 of 1984 and the certified copy of the said judgment in O.S.No. 92 of 1985 was also procured and marked as Ex.P.9. The same view has been taken by this Court in the appeal in A.S.No. 849 of 1992 on the file of this Court. Therefore, it is clear that the petitioner, who is the 2nd defendant in the abovesaid suit, has got valid title to the petition-mentioned property.
32. According to the petitioner, who was examined as P.W.1 before the Rent Controller, the 1st respondent was permitted to continue in possession of the petition-mentioned property for one year from 4.5.1982, for which an agreement was executed by the 1st respondent in favour of the petitioner as seen in Ex.P-5, dated 4.5.1982. R.W.1 Jayaraj has not specifically denied the execution of Ex.P-5, dated 4.5.1982 while he was examined before the Rent Controller, even though Ex.P-5 was marked by the petitioner before the Rent Controller, as the agreement executed by the 1st respondent in favour of the petitioner. It has to be presumed that the 1st respondent has not denied the execution of Ex.P-5, dated 4.5.1982, since the said document has been produced before the Rent Controller by the petitioner, claiming it to have been executed by him for continuing in possession for a period of one year from the date of execution of the sale deed by the 1st respondent in favour of the petitioner with regard to the petition-mentioned property. Therefore, this Court is not able to agree with the view expressed by the Rent Controller as well as by the appellate authority that Ex.P-5, dated 4.5.1982 cannot be a genuine document.
33. A perusal of Ex.P-2, dated 1.7.1983 is the copy of notice sent by the petitioner in H.R.C.O.P.No. 72 of 1984 to the respondents. Ex.P-3, dated 8.8.1986 is the reply notice sent by the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983. Ex.P-4, dated 1.9.1983 is the rejoinder sent by the petitioner in H.R.C.O.P.No. 72 of 1984 to the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983. The case put forward by the 1st respondent, who is R.W.1 before the Rent Controller, would disclose that he is also making claim for the payment of rent by the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983 for occupying the petition-mentioned property which was purchased by P.W.1 under Ex.P-1, dated 4.5.1982 for Rs. 17,000. The exchange of notices referred to above would also show that P.W.1, as owner of the petition-mentioned property, is making a claim for the property under the occupation of the 2nd respondent, who has examined R.W.2, who is the manager of the 2nd respondent, to support his case. In view of the said conflicting claim for the rent made by P.W.1 and R.W.1, the 2nd respondent has come forward with the petition in H.R.C.O.P.No. 143 of 1983.
34. The petition in H.R.C.O.P.No. 72 of 1984 was filed for eviction of the respondents mentioned therein on the grounds of wilful default in payment of rent, sub-letting and for own use and occupation. The abovesaid grounds were not accepted by the Rent Controller and, therefore, the appeals in R.C.A.Nos. 44 and 45 of 1990 were filed on the file of the Rent Control Appellate Authority, Tirunelveli, who has dismissed both the appeals filed by the petitioner in H.R.C.O.P.No. 72 of 1984 and the 2nd respondent in H.R.C.O.P.No. 143 of 1983 on the sole ground that there is a bona fide dispute with regard to the title to the petition-mentioned property between the appellant and the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983. It is relevant to point out that the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983, has not disputed the title of the petitioner in H.R.C.O.P.No. 72 of 1984, who is the appellant in both the appeals or set up title in the 1st respondent in H.R.C.O.P.No. 72 of 1984 or in himself. It is also relevant to point out that there is no ground urged in the appeal memorandum with regard to the denial of title by the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983. If that is so, it is not known as to how the appellate authority has found that there was a bona fide dispute with regard to the title of the petition-mentioned property between the petitioner in H.R.C.O.P.No. 72 of 1984 and the 2nd respondent, who is the petitioner in H.R.C.O.P.No. 143 of 1983. The abovesaid conclusion has been arrived at by the learned Rent Control Appellate Authority for the reason best known to him and without application of mind while sitting in appeal against the order of the Rent Controller. On an erroneous conclusion, the appellate authority has also decided that there was no need for him to go into the merits of the decision of the Rent Controller with regard to the grounds on which eviction was sought for by the petitioner in H.R.C.O.P.No. 72 of 1984, viz., grounds of wilful default in payment of rent, sub-letting and own use and occupation.
35. The learned Senior Counsel Mr. K. Alagiriswamy vehemently contended that the Rent Controller as well as the appellate authority had come to the conclusion that Ex.P-5, dated 4.5.1982 is not genuine and, therefore, the petition filed by the petitioner in H.R.C.O.P.No. 72 of 1984 has to be dismissed, sustaining the order to deposit the rent in court in H.R.C.O.P.No. 143 of 1983. This Court, for the reasons stated supra, has found that Ex.P-5, dated 4.5.1982 cannot be held to be fictitious document. Learned Counsel for the petitioner in H.R.C.O.P.No. 72 of 1984 has brought to the notice of this Court about the admission made by R.W.1 in his evidence that he was in possession of the property as on the date of execution of Ex.P-1, dated 4,5.1982, which was the date on which Ex.P-5 has also come into existence. Therefore, the contention of learned Senior Counsel as mentioned above, cannot be accepted.
36. Yet another contention raised by the learned Senior Counsel, Mr. K. Alagiriswamy is that the finding with regard to Ex.P-5 by the Rent Controller as well as by the Rent Control Appellate Authority, need not be disturbed even if the matter has to be remanded back to appellate authority to give a finding with regard to the grounds of wilful default in payment of rent, subletting and own use and occupation. At the outset, such a contention cannot be accepted since the erroneous judgment rendered by the appellate authority without application of mind, cannot be sustained in part with regard to Ex.P-5, while remanding the matter for reconsideration in the light of the evidence available before court. Without a clear-cut finding with regard to the grounds on which eviction was sought for by the petitioner in H.R.C.O.P.No. 72 of 1984 there can be no effective adjudication of the dispute between the parties in the civil revision petitions. In view of the said position, learned Counsel for the petitioner has also got no objection to remand the matter back to the Rent Control Appellate Authority to dispose of the appeals on merits in the light of the evidence available before court and in accordance with law. This Court finds favour with such a contention raised by learned Counsel for the petitioner. Therefore the common judgment passed by the appellate authority has to be set aside and the matter has to be remanded to the appellate authority. The points are answered accordingly.
37. In fine, the appeal in A.S.No. 849 of 1992 is dismissed with costs. C.R.P.Nos. 3294, and 3295 of 1993 are allowed, the common Judgment rendered by the Rent Control Appellate Authority in R.C.A.Nos. 44 and 45 of 1990 is set aside and the matter is remanded back to the appellate authority for fresh disposal in accordance with law in the light of the observations made supra and in the light of the evidence available on record, within three months from the date of receipt of copy of this judgment with records. Till the disposal of the appeals by the appellate authority, the petitioner in H.R.C.O.P.No. 143 of 1983 is permitted to deposit the rent in court periodically. Both the parties are directed to bear their own costs.