JUDGMENT
Bellie, J.
1. The plaintiff is the appellant in this Letters Patent Appeal. The two defendants (respondents herein) are the plaintiffs younger brothers. The plaintiff filed the suit alleging that the suit house belonged to her mother, purchased by her on 21-12-1939 and she was in possession of the same till her death in 1948. After the death the property devolved on the plaintiff and she became the absolute owner thereof. The plaintiff and the defendants were living together in the suit house. After the defendants’ marriage respectively in 1964 and 1965 the plaintiff permitted each of them in occupation of separate portions of the house, the plaintiff herself occupying the middle portion. While so in 1969 the second defendant fraudulently prepared a document and obtained the signature of the plaintiff with a view to show that all the three of them i.e., the sister and the two brothers were each entitled to 1/3rd share in the suit property and to make their possession permanent. This document was not acted upon and when the plaintiff remonstrated against this document the second defendant high handedly committed trespass over the portion of the house in her occupation and caused damage to her samans. On these pleadings the plaintiff has filed the suit for declaration and possession and for mesne profits.
2. The first defendant in his written statement conceded the case of the plaintiff as regards her right to the suit house but however he denied that he is liable to pay any mesne profits.
3. The second defendant contended that it was his father who was the owner of the property and not his mother in whose name the house was purchased benami. Therefore the plaintiff has no right in the property, but, however at her request the defendants agreed to give her 1/3rd share in the house and accordingly he entered into an agreement on 9.11.1969 under which each of them i.e. the plaintiff and the defendants were entitled to 1/3rd share. This document is binding on the plaintiff and hence she has no right to claim right to the entire house and seek possession of portions which the defendants are occupying.
4. The trial court on consideration of the evidence held that the mother was the real owner of the property and she was not a benamidar of her husband as alleged by the second (defendant. It further held that the document dated 9.11.1969 was brought up fraudulently and it was not acted upon and it is not admissible in evidence for want of registration. On these findings the trial court granted a decree for declaration and possession and for mesne profits as prayed for.
5. Against that decree the second defendant filed an appeal and in the appeal A.S.No. 252 of 1973 Venugopal, J. agreed with the finding of the trial court that the mother was the owner of the house and she was not a benamidar for her husband, but the learned Judge did not agree with the finding of the trial court that the document dated 9.11.1969 was brought up fraudulently by the second defendant and held that that document is true, valid and genuine. According to the learned Judge this document is a family arrangement and it is enforceable. But, since the first defendant has not filed an appeal against the decree passed by the trial court, the learned Judge held that that decree against the first defendant has become final and therefore the plaintiff will be entitled to 2/3rds share. Then the learned Judge observing that though the suit is for recovery of possession, since the plaintiff and the second defendant are co-owners and as no partition has taken place so far, he passed a decree declaring the plaintiffs right to 2/3rds share and then he laid down that for recovery of possession and other reliefs the parties have to work out their remedies by appropriate proceedings.
6. As against this the plaintiff has filed this Letters Patent Appeal. The second defendant was the only respondent but during the pendency of the appeal the first defendant got himself impleaded as second respondent.
7. The learned Counsel for the appellant-plaintiff contends that the document dated 9.11.1969 which is said to be a family arrangement had been brought out by the second defendant fraudulently and therefore it is not a true and valid document and that that document has not been acted upon, and that even if it is true and valid it is not admissible in evidence for want of registration. Whether the plaintiffs mother was the true owner of the property or she was only a benamidar for her husband need not be gone into in this appeal because the respondents defendants have not questioned the concurrent finding of the learned single Judge in the appeal and the trial court that the mother is the true owner and not a benamidar. In fact the very issue does not arise in the case for consideration. Both the learned single Judge in the appeal and the trial court have said that the document dated 9.11.1969 is true and valid. This document has been prepared in triplicate and all the three parties viz., the sister and the two brothers have been each given one copy and they have been marked as Exs.A-11, B1 and B.2. All the three parties have signed in this document.
8. It is argued by the learned Counsel for the appellant-plaintiff that the signature of the appellant-plaintiff had been obtained by the second defendant fraudulently by mis-representing that it is a document for effecting some repairs to the house. But in the plaint it has not been stated as to how the fraud was perpetrated. It is merely said that the document was not read over to the plaintiff and the signature had been obtained in it hurriedly. Then it is stated, which is rather contrary to the allegation that she did not know the contents of the document, that her signature was obtained when she had no benefit of any independent advice. It must be remembered, as the learned single Judge has pointed out, the plaintiff was a trained teacher and it must also be remembered she was elder to both the defendants. What is more important is that her own husband who was a gazetted Officer has attested the document. Then Ex.A.11 which is one of the copies of the triplicate of the document has been with the plaintiff throughout. Of course she (Plaintiff) has stated in her evidence that she was given Ex.A.11 only after four days of her signing it. But at least from then on she was in possession of it and hence she must be knowing the contents of it, but she has not raised any objection whatsoever. It was only after two years, in her notice Ex.A.12 dated 10.7.1971, she has stated that her signature in the document was obtained by deceit and fraud. It is worth noting that in this notice the plaintiff has stated that the second defendant obtained her signature in the document stating that the property belongs to all the three of them. This statement in the notice again goes against the plaintiffs version that her signature had been obtained without letting her know the contents of the document. From all this it is not at all possible to accept the argument of the learned Counsel for the appellant-plaintiff that this document has been brought about by the second defendant fraudulently. It must be held that the plaintiff, fully knowing well the contents, has signed the document and therefore it is a true and valid one.
9. Now, a reading of the document (Exs.A11, B1 or B2) would show that the three parties have agreed to divide the house into three equal parts, the first defendant taking the central portion and the plaintiff taking the back portion, and in accordance with that agreement they have executed the document. They have termed the document as partition agreement. It is further stated in the document that all the three parties would execute a partition deed in accordance with the terms of this agreement, and each of the parties will enjoy with full right and possession of the portion allotted to him or her. It is then stated that each of the parties has agreed that any of the parties should not contravene the terms of the agreement and if any contravention happens, then this document itself would be treated as a partition deed and each of the parties will become entitled to the respective portion allotted to him or her. In the document the property has been stated to be ancestral property. It must be remembered that in the suit, according to the plaintiff, the property absolutely belonged to her mother having purchased by her and according to the defendants the mother was only a benamidar to their father. From the description of the property given as ancestral property in the document and the contentions of the parties in the suit as regards title, it is clear that the parties wanted to arrive at a settlement between them in respect of the property and they have agreed to divide the property into three equal shares and allot specific portions to each of them. This agreement is clearly a family arrangement as held by the learned single Judge in the appeal. Whether the property belonged to the mother absolutely in which case only the plaintiff would be entitled to it or the mother was only a benamidar for the father in which case only the defendants would be entitled to it, if the document in question is true and valid and it is a family arrangement, the parties will be bound by the terms of this document. In this connection we may refer to the decision in Maturi Pullaiah v. Maturi Narasimhan A.I.R. 1966 S.C.1836 : (1986) 2 S.C.R. 850 wherein in para 17 it is stated that,
Briefly stated, though conflict of legal claims in presenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.
(Italic ours).
We may also refer to the decision in Kaly and Ors. v. Deputy Director of Consolidation and Ors. in which it has been held at paragraph 10 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. 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.
From this position of law laid down by the Supreme Court it is clearly seen that even if any party does not have any legal right to the property, he will have the benefit if any under the terms of the family arrangement. Hence the three parties to the family arrangement in the present case are bound by the terms thereof and therefore each of them will be entitled to 1/3rd share of the property and each will take as his or her share the portion of the house allotted.
10. As regards the next contention of the learned Counsel that this document has not been acted upon, we find there is absolutely no substance in it. It is even according to the plaintiff that each of the parties is already in possession of one portion of the house. That means the property has been divided between the three parties and each of them has taken a specific portion thereof as his or her share. This conforms to the terms of the agreement. The document is dated 9.11.1969, but just in two years thereof i.e., on 10.7.1971 the plaintiff has sent Ex.A.12 notice repudiating the agreement. Therefore it cannot at all be said that the agreement has not been acted upon. As seen above, as per the agreement, the parties have to execute a partition deed in accordance with the terms of this agreement and if they fail to do so, this agreement will be treated as partition deed. Hence as stated above, there is no merit in this contention of the learned Counsel.
11. Then the last contention is that the document is inadmissible in evidence for want of registration. This also is not with much force. In this regard we will first refer to the rulings made on similar points raised in Maturi Pullaiah v. Muthuri Narasimhan A.I.R. 1966 S.C. 1836 : (1966) 2 S.C.W.R. 850 and Kaiyand Ors. v. Deputy Director of Consolidation and Ors. . In the first case it has been held that,
The family arrangement will need registration only if it creates an interest in immovable property in praesenti in favour of the parties mentioned therein. In case however no such interest is created, the document will be valid despite its non-registration and will not be hit by Section 17 of the Registration Act.
In the second case it has been held that,
That family arrangement maybe even oral in which case no registration is necessary. The 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 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 is, therefore, not compulsorily registrable.
It is therefore clear that if the family arrangement is made under a document it is registrable, and if the document is only a memorandum of the family arrangement which had already been made it requires no registration. Now, even the plaint allegation is that the defendants were already in possession of portions of the house even from 1964-65. Of course this possession according to the plaintiff is permissive, but there is absolutely no evidence in support of it. The document itself reads to the effect that they have agreed in a panchayat that they would divide the properties into three shares and the first defendant would take the front portion and the second defendant the central portion and the plaintiff the back portion and in accordance with that panchayat they have executed the agreement. It further reads that they would, in reference to the terms of this agreement execute a partition deed. From these it would appear that this agreement is only a memorandum of the terms to which the parties agreed in the panchayat. Therefore, in the light of the Judgments of the Supreme Court referred to above, the agreement does not appear to the registrable.
12. Then again even if the agreement is registrable, it can still be admissible in evidence for another reason. Now, as stated above, each of the parties was already in possession of one portion of the house. The suit is for possession. According to the defendants they are in possession in accordance with the terms of agreement between the three parties. To show this they can file the agreement in question even though it is not registered. To this effect it has been clearly held in Kaly and Ors. v. Deputy Director of Consolidation and Ors. that,
Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement.
Thus the document is admissible in evidence for a second reason also.
13. For yet another reason also the document cannot be held to be inadmissible. The plaintiff herself has filed Ex.A11, one of the copies of the triplicate of the document. She herself is a party to the document. Only after two years she has attempted to repudiate the terms of the agreement. In the document the property has been described as ancestral and whereas according to the plaintiff it is the mother’s property, according to the defendants it is the father’s property. Of course there is a concurrent finding that it is mother’s property. But inspite of the concurrent finding, which is of course binding, the truth could be it is not so. Quite possible the plaintiff is benefited by the document. In these circumstances, the question arises whether she is not estopped from contending that the document is not admissible for want of registration. In Kaly and Ors. v. Deputy Director of Consolidation and Ors. it is held that,
Assuming that the document was compulsorily registrable the family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
In our view, whether the plaintiff had advantage of that document or not, having agreed and consented to the terms of the document by subscribing her signature thereto and having kept quiet for a long time, and having herself filed the document in court, she is estopped from contending that the document is inadmissible for want of registration.
14. Therefore we hold that the document has been rightly admitted in evidence.
15. In view of the above findings, the suit for possession cannot be maintained by the plaintiff. However, it appears that as against the decree of the trial court that the plaintiff is entitled for possession as prayed for in the plaint, only the second defendant has filed an appeal and not the first defendant and in fact the plaintiff has taken possession of the portion occupied by the first defendant. Indeed, as aforementioned, the first defendant in his written statement has conceded the plaintiffs claim. In these circumstances the first defendant (second respondent in this appeal) cannot be heard to say that he is entitled to a portion of the house or the suit for possession should be dismissed. Of course in an appeal the appellate court can grant relief to any party even if that party is not party to the appeal if it considers that it would be just and proper in the circumstances of the case. But in the present case no such circumstances arises.
16. Now the learned single Judge has observed that the plaintiff and the second defendant are co-owners and the property has not been partitioned so far, and therefore even though the suit is for possession, he has held that there will be a decree for partition as between them. This appears to us to be erroneous. As can be seen from the facts stated above, the three parties have already divided the property and each of them are allotted a separate portion and he or she is in possession of it. Therefore we do not see any meaning in saying that the plaintiff and the second defendant are co-owners. The property has already been divided and each party has been allotted a specific portion. Therefore no question of any fresh partition arises now. Consequently the proper result would be the dismissal of the suit for possession as against the second defendant.
17. In the result, we agree with the findings of the learned single Judge excepting that the finding that there shall be a decree for partition is set aside and the suit is dismissed as against the second defendant. With this modification of the Judgment of the learned singe Judge, the Letters Patent Appeal is dismissed with costs. The second respondent first defendant will hot get any relief.