JUDGMENT
K.S. Radhakrishnan, J.
1. Plaintiff is the appellant. Suit was Instituted for specific performance of Clause 8 of the agreement dated 16-7-1983.
2. Plaintiff is the son. First defendant is the father and second defendant is the brother. Properties belonging to the plaintiff and defendants were partitioned orally in 1967 and partition deed was executed on 20-2-1972. According to the plaintiff, even though partition deed was registered, since first defendant was old and second defendant was employed in the Electricity Board the affairs of the family were managed by the plaintiff and by utilising the income obtained from the agricultural properties and by availing of loans from Banks and by raising money executing promissory notes, certain properties were acquired. Even though some of the properties were partitioned as per the partition deed, they were having common mess and common residence. Difference of opinion arose between the parties which led to execution of karar dated 16-7-1983. As per Clause 8 of the agreement, partition deed A schedule, Koduvayur property set apart to the share of the first defendant has to be possessed and enjoyed by the first defendant till his death and after his death, the same has to be enjoyed by the mother and after the death of the mother properties must devolve upon the plaintiff and the second defendant by making two schedules and accordingly first defendant has executed the settlement deed which was agreed upon by the parties. Plaintiff’s case is that after signing the agreement defendants colluded together and with the intention of defeating the plaintiff, second defendant attempted to get A schedule properties from the first defendant for which they executed exchange deed No. 53 of 1984 of Koduvayur Sub Registry Office by which first defendant gave A schedule properties to the second defendant and took B schedule properties from the second defendant. Plaintiff submitted that exchange deed was not executed by him. Further it is also his case that first defendant has no manner of right to execute such an exchange deed and the same is not binding on the plaintiff. Since there is no other way for the plaintiff to ask the first defendant to execute the settlement deed as per Clause 8 of the agreement, plaintiff instituted the suit. The first defendant filed written statement stating that the suit is not maintainable and the agreement is not admissible in evidence.
3. Plaintiff in order to establish his case got himself examined as P. W. 1. P. W. 2 was also examined. Documents were marked as Exts. A1 to A20. On the side of the defendants first defendant got himself examined as D.W. 1 Second defendant was also examined as D.W. 2. Trial Court after considering the oral and documentary evidence did not grant the reliefs and dismissed the suit. Matter was taken up in appeal before this Court by the plaintiff. Cross-objection was preferred by the first defendant. The appeal and the cross-objection were dismissed by the learned single Judge of this Court. Aggrieved by the same this appeal has been preferred.
4. Heard counsel for the appellant and the respondents.
5. Learned counsel for the appellant Sri V. R. Venkitakrishnan submitted that Ext. A4 is a family arrangement entered into between the parties and therefore they are bound to honour the same. Counsel took us through the various provisions of Ext. A4 agreement. Reference was also made to various decisions pertaining family settlement and Mulla’s Hindu Law, 11th Edition. Reference was also made to Hindu Law, 5th Edition by Raghavendra. To establish the contention counsel also placed reliance on several decisions such as, Krishna Beharilal v. Gulabchand (AIR 1971 SC 1041), Maturi Pullaiah v. Maturi Narasimham, (AIR 1966 SC 1836), Shanmugham Pillai v. Shanmugham Pillai, (AIR 1972 SC 2069), etc. Counsel appearing for the respondent Sri K. Jayakumar on the other hand submitted that Ext. A4 cannot be termed as family arrangement. Counsel took us through Ext. A4. Counsel submitted that in order to enforce Ext. A4 the plaintiff has to establish that Ext. A4 amounts to compromise of doubtful rights among the members of the family and plaintiff is a beneficiary to that. Counsel submitted that after effecting the partition by Ext. A5 sharers began to enjoy the property independently. There is a reunion or disruption of status so that the terms of Ext. A4 cannot be enforced.
6. The only question that is posed for consideration is whether the plaintiff is justified in seeking relief of enforcement of Clause (8) Ext. A4 karar. We may for easy reference refer to Clause (8) of Ext. A4.
(Vernacular matter omitted….Ed.)
Counsel tried to bring in Ext. A4 and Clause (8) within the ambit of Section 15(c) of the Specific Relief Act. Plaintiff sought to enforce Clause (8) by which according to the plaintiff, first defendant has agreed to possess and enjoy the paddy field in Koduvayur during his life time and to execute a document so that the property would devolve on plaintiff and second defendant in two schedules after the death of the first defendant and his wife. But a portion of the property was agreed to be given to the second defendant in case he intends to put up a house for his residence. According to the plaintiff he wants to enforce Clause (a) alone in Ext. A4. It is also his plea that the said clause is to be enforced so as to bring peace and harmony in the family. According to him, Clause (8) in Ext. A4 alone is sought to be enforced.
7. We may in this connection refer to Section 15 (c) of the Specific Relief Act, 1963, which is extracted below for easy reference.
15. Who may obtain specific performance. Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by —
(a) to (b) ………………………….
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;
We have already indicated that plaintiff tried to project it as family arrangement. In order that a family arrangement may be acted upon by a Court as a valid deed of partition the said arrangement must be made with intent to preserve the family peace and harmony. There must be suggestion of a contest or apprehension of some dispute in future which is sought to be settled by the arrangement. Though conflict of legal claims at present or in future is generally a consideration for the validity of a family arrangement, yet there is no conflict of legal claims but only bona fide disputes, present or future, not involving legal claims the family arrangement may be held to be valid. It is true that Courts in India have made every effort to sustain family arrangement rather than avoid it, having regard to the broadest consideration of family peace and security. However, where no conflicting rights are to be resolved nor any dispute between the members of the family are to be settled, it is essential that there must be mutuality in the arrangement.
8. The Apex Court in Maturi Pullaiah v. Maturi Narasimham (AIR 1966 SC 1836) observed that members of joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. In Shambhu Prasad Singh v. Most. Phool Kumari, (AIR 1971 SC 1337) the Apex Court held that it is not necessary that there must exist a dispute, actual or possible in the future, in respect of each and every item of property and amongst all members arrayed one against the other. The Court observed that it would be sufficient if it is shown that there were actual or possible claims and counter-claims by parties in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging title in one to whom a particular properly falls on the assumption that he had an anterior title therein.
9. The facts in this case would indicate; that property has already been partitioned by registered partition deed Ext. A5 dated 20-2-1972. Subsequent to the partition deed all the sharers continue to enjoy the property separately. There is nothing to show that there is dispute between the family members after 1972. No evidence has been adduced by the parties to show that there was dispute and there was no peace and harmony among the members of the family. There is no doubtful rights of parties and it cannot be said that Ext. A4 amounts to compromise of doubtful rights among the members of the family. We are of the view, there will be doubtful rights only if the shares are undivided. In this case registered partition has already been effected in the family properties and the properties were separately earmarked. Unless and until it is shown that there is reunion in the family, the question of doubtful rights does not arise. To constitute reunion there must be intention of the parties to reunite in estate and in interest. The Apex Court in Bhagwan Dayal v. Mst. Reoti Devi, (AIR 1962 SC 287) held that it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have been reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion.
10. We notice, in this case joint family has already been dissolved in view of the registered partition deed of the year 1972. There is no case for the parties that there was reunion which necessitated family arrangement. Further with regard to the parties it is only Clause (8) which is advantageous to them. We fail to see how the said clause could be enforced ten years after the execution of the registered partition deed. We are therefore in agreement with the Courts below that the claim of the plaintiff to get Clause (6) enforced cannot be granted. We are also of the view that the Courts below have rightly declined discretionary jurisdiction to grant the relief. Grant of relief of specific performance is discretionary and in our view, Courts below have rightly exercised the discretion. We therefore agree with the Court below and dismiss the appeal. Parties would bear their respective costs in this appeal
