1. This is an appeal from the judgment and decree of the Court of the Subordinate Judge, Vijayawada, in O. S. No. 26 of 1957.
For a proper appreciation of the contentions raised in this appeal, it is necessary to state the material facts. The following genealogical table shows the relationship of the parties concerned:
KATRAGADDA ABBAYYA (died)
-SANTAMMA (died before 1911) | ____________________________________________________ | | | | Ramaswami- Subbayya Kantamma Kotamma ebenchamma (died in 1892) Kondapalli Gottipati (disappeared Kondapalli Venkata Nagayya.
" 3. Katragadda Abbayya died some time before 1890, curvived his wife, Saatamma, and his four children. In or about 1890, Ramaswami left the family house to live in a Matham. In the year 1892, Subbayya died leaving him surviving his wife, Seshamma, who was by then a minor. He had no issue, mala or female. On March, ,1894, Abbayya (hereinafter referred to Abbayya junior) son of Ramaswami and Chenchamma, died. Ramaswami having gone away to a Matham, the members of the family then were his mother Santamma, his wife Chenchamma, his daughter Bhramaramba, and his brother Subbayya's widow Seshamma, and his sisters Kantamma and Kotamma."
4. On June 29, 1895, Chenchamma, the wife of Ramaswami, Bhramaramba, her minor daughter represented by her mother as guardian, Seshamma, the widow of Subbayya, and Santamma, the mother of Ramaswami and Subbayya, executed Ex. B-2, a deed entitled Samakhya. The substance and effect of Ex. B-2, was that the family properties were divided into four equal, shares, out of which one share was taken by Chenchamma, the second by Bhramaramba, the third by Seshamma, and the fourth by Santamma. The deed provided that all the four executants, to whom a l/4th share each was allotted were to take their respective shares absolutely. Santamma, the mother of Ramaswami and Subbayya, died some time before 1911. Bhramaramba died in or about the year 1924, survived by her son, the plaintiff. Chenchamma died on January 1, 1945.
5. The present suit was instituted on January 2, 1957, by Bhramaramba's son, Venkatasubbarao, for recovery of possession of the plaint schedule properties, with are situate in the village of Valluplpalem and Chinapulipaka, and for profits and other incidental reliefs. The properties in suit, items 1 to 27, in the possession of defendants 1 to 28, are said to be properties allotted to Seshamma and Santamma under Ex. B-2. Santamma's share was taken by her two daughters, Kantamma and Kotamma; and Seshamma's share was taken by her father and brothers. In the suit, Seshamma was impleaded as the 1st defendant, and the brother's sons of Seshamma, as defendants 2, 3 and 4. Defendants 5 to 28 are the alienees in possession of the suit properties. The plaintiff claims possession of items 1 to 27 as the daughter's son of Ramaswami, or in the alternative, as the sister's son of Abbayya, it is admitted by the plaintiff that hf is in possession of the other properties covered by Ex B-2 which were allotted to Chenchamma and Bhramaramba.
6. Briefly stated, the case of the plaintiff was that the arrangement brought about by Ex. B-2 was a collusive and fraudulent transaction intended to defeat the rights of the reversions to the estate of the last male holder and that, therefore, the plaintiff was not bound by the said arrangement.
7. The defences raised were: (1) that the Samakhya evidence by Ex. B-2 was valid and family arrangement; (2) that the suit was barred by limitation; (3) that the plaintiff was estopped from questioning the alienations; and (4) that in any view, the alienees were entitled to equities.
8. The lower Court found that Ex. B-1 amounted to a valid family arrangement, which excluded the right of the plaintiff to claim possession of the plaint schedule properties. The other findings were that there was no estopped, and that there was no bar of limitation. On the basis of the main finding, the lower Court dismissed the suit. Against the said decree of dismissal, the plaintiff has preferred this appeal.
9. Before us, the learned Advocate-General, appearing for the appellant (plaintiff), has attacked the finding of the lower Court that the Samakhya amounted to a valid family arrangement. The substantial question, therefore, for decision in this appeal is whether Ex. B-2, the deed elated June 29, 1895, is valid and binding on the plaintiff.
10. Ex. B-2 is a registered document, under which Chenchamma, Bhramaramba, Seshamma and Santamma divided an extent of Ac. 45.96 cents into four equal shares, each of them taking the share allotted to her absolutely. Tile important recitals in this document are that there was a partition between Chenchamma's husband, Ramaswami, and Seshamma's husband, Subbayya, about seven years prior to the date of the document; that Ramaswami's wife, Chenchamma, took possession of her husband's share when her joined the Mutt; and that Seshamma took possession of her husband's share on his death. Then occur the following recitals:
"I had a daughter but as Seshamma had no Issue she is trying to adopt a child as per the authority given by her husband at the time of his death. Meanwhile there were misunderstandings between us to respect of the differences of shares we held previously. In order to settle the misunderstandings the villagers and relatives arranged to state our case before the mediators. As per the settlement made by the mediators, we four individuals agreed to divide among ourselves the assets and liabilities we had previously and the existing movable and immovable properties, i.e., the entire estate of us as follows: (1) Ramaswami's wife Chenchamma shall take one share and that (2) her minor daughter Bhramaramba shall take one share and that (3) late Subbayya's wife Seshamma shall take one share; (4) and that the mother-in-law of Chenchamma and Seshamma, by name Santhamma, shall take one share in all four shares, and that each sharer shall be responsible to her share of property and shall be in enjoyment of the same from now onwards and that if each sharer shall dispose of her property by way of gift, mortgage, exchange, etc., the other sharers should not raise any objection for the same .......
11. The document gives the particulars of the liabilities of the family and provides for their discharge by the four sharers. There are other consequential provisions, the details of which are not material for the purposes of the present appeal.
12. It is argued by the learned Advocate-General that the recital in the deed that there was a division between Ramaswami and Subbayya seven years before the date of the document is not correct; that Ramaswami and his brother, continued to be members of a joint family, that on the disappearance of Ramaswami and the death of Subbayya, Abbayya (junior), became the sole surviving coparcener and on his death, the properties devolved on his mother, Chenchamma.
13. As supporting the fact that there was no partition, the learned Advocate-Genera! relied upon two documents, Exs. A-1 and A-2. Under Ex. A-1, dated August 9, 1888, Subbayya, the brother of Ramaswami sold seri dry land of the extent of Ac. 9-49 cents, known as Valluru Chenu, situated in Vallum village, for a consideration of Rs. 225/-. The deed recites that the property sold was acquired by Subbayya's ancestors, in respect of which a patta had been granted in favour of his elder brother Ramaswami. The purpose of the sale was said to be the discharge of the debts contracted by Ramaswami. The document contains a recital describing Ramaswami as ^^fons'kh;qMq^^ which expression must have been employed to denote that Ramaswami had left the village.
14. It is argued that the land conveyed under this document is situated in the village of Valluru which, according to the recitals in Ex. B-2, must have fallen to the share of Ramaswami, and that the fact that Subbayya executed a sale deed for Valluru land would establish that the recitals about partition in Ex. B-2, are false. It may be remembered that Ex. B-2 was executed in the year 1395 and it was stated therein that the partition between Ramaswami and Subbayya had taken place seven years before the date of that document, which would take us to 1888. Ex. A-1 was executed in the year 1888 and is just on the border line. It is possible that it was executed shortly before the division, when Ramaswami was away from the family house. This document is not, therefore, conclusive to show that the recitals In Ex. B-2 with regard to the division, are false.
15. Reliance has been next placed upon Ex. A-2, This is a said deed dated July 18, 1889, executed by Ramaswami in respect of Ac. 4-47 cents of seri land, situated in China Pulipaka village. Taking tha recital in Ex. B-2 at its face value, the division between the brothers, Ramaswami and Subbayya, referred to therein, should have been anterior to this sale deed. It is, therefore, argued that Ramaswami could not have executed a sale deed in respect of land situated in China Pulipaka village which should have fallen to the share of Subbayya, if the recitals in Ex. B-2 were true. While the sale deed itself was executed by Ramaswami, It was attested by his brother Subbayya. There is no mention in this document about the division. It is argued that the fact that Ramaswami sold a piece of land which, according to Ex. B.2, fell to the share of his brother, Subbayya, coupled with the fact that there is no mention of the alleged division supports the case of the appellant that the recitals in Ex. B-2, are false. It is, no doubt, true that Ex. B-2 mentions that the Pulipaka lands fell to the share of Subbayya, whereas the Valluru lands tell to the share of Ramaswami, and there is no plausible explanation as to why Ramaswami dealt with a land which fell to the share of his brother Subbayya. But there is equally no explanation as to why if there was no anterior partition, Ramaswami alone executed the sale deed. On the hypothesis that there was, In fact, no anterior division between the brothers, the sale deed should have been executed by both of them. The fact that one of the brothers alone executed the sale deed while the other brother attested it, shows that there must have been a division between the brothers.
16. There is another vital circumstance In the casa which points to the same conclusion. It may be noted that the document, Ex. B-2, was executed in the year 1895. Even if it is to be assumed that Santamma, the mother of Ramaswami and Subbayya, and Seshamma, the widow of Subbayya, were both interested in making a false recital, there was no reason why Chenchamma should have acquiesced in a recital prejudicial to the Interests of her daughter. Having regard to the long lapse of time Ex. B-2 was executed before the turn of the century
-- it is difficult to get direct evidence with regard to the fact of division. The presumption which exists with regard to recitals in ancient documents must therefore prevail. We are satisfied that the conclusion reached by the lower Court, that there must have been a division as recited in Ex. B-2, is correct.
17. Learned Advocate-General has argued that the parties deliberately omitted to mention about Abbayya Junior, because they wanted to make it appear that there was in truth a partition between Ramaswami and Subbayya. Here again, there is no reason to suppose that Chenchamma would have been a consenting party to a recital which would have the effect of depriving her own daughter and her children of their legitimate rights.
18. The next of the questions for decision is, whether Ex. B-2 amounts to a valid family arrangement. The learned Advocate-General has contended that neither Santamma nor Seshamma had any antecedent title which could form the basis of a family arrangement.
19. The principles which govern a family arrangement have been set out by their Lordships of the Supreme Court in Sahu Madho Das v. Mukand Ram, 1955 SCJ 417 : ((S) AIR 1955 SC 481):
"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 ot 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. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, In anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest In all the properties in dispute and acknowledges that the sale and absolute title to all the properties resides in only one of their number (provided he or she has claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present."
20. As pointed out by their Lordships of the Supreme Court in the above passage, Courts strongly lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all. In this context, the law as laid down by Lord Eldon L. C. as long ago as the year 1816 in Gordon v, Gordon, (1816) 3 Swans 400 : 19 RR 230 is apposite:-
"Where family agreements have been fairly entered into, without concealment or Imposition on either side, with no suppression of what is true or suggestion of what is false, then, although the parties may have greatly misunderstood their situation, and mistaken their rights a Court of equity will not disturb the quiet, which is the consequence of that agreement..........."
21. The following passage from Halsbury's Laws of England, Simonds 3rd Edition, Volume 17 at page 215, describes the requisites of a valid family arrangement ;
"(It) is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family (a) either by compromising doubtful or disputed rights or by preserving the family property, (b) or the peace and security of the family by avoiding litigation, (c) or by saving Its honour."
22. The preservation of family peace and its property form a good basis for a family arrangement. Nevertheless, there must be a situation of a contest or apprehension of some dispute in future which is sought to be bona tide resolved by the arrangement. The essence of a family arrangement is the existence ot a genuine dispute.
23. In the light of these principles, we will now consider whether the arrangement evidenced by Ex. B-2 can be supported. The position on the date of the document was that Ramaswami, tha elder brother, had left the family house to Join a Matam. Subbayya, the other brother, died leaving him surviving his widow but no issue. Abbayya Junior, the son of Ramaswami, died. Ramaswami's branch was then left with Chenchamma, his wife, and Bhramaramba, his daughter. There was in Subbaiah's branch only his widow Seshamma. Santamma, the widowed mother of Ramaswami and Subbaiah, was alive. There were besides her two daughters, Kantamma and Kotamma. The family properties consisted of 45 acres of land, mostly dry, and a house site with some liabilities.
24. We have already found, in agreement with the Court below, that there must have been a division of the properties between Ramaswami and Subbaiah before the disappearance of the former and the death of the latter. If the recitals about partition in Ex. B-2 are true, Seshamma would be putting forward a competing title and what was given to her was in recognition of that title and one essential requisite of a valid family arrangement, is satisfied.
25. There is also the fact that Seshamma made a claim that her husband gave her authority to adopt. It she had made an adoption on the basis of that authority, she would have brought an adopted son who would be entitled to the half-share of Subbayya. Then there was the claim of Santamma for maintenance. Bhramaramba had to be married; there were liabilities to be discharged. It Is but natural that under these circumstances, Chenchamma was a willing party to the Samakhya, under which she was getting a 1/4th share and her daughter was getting an equal share, with the result that her branch was getting a half share in all the family properties. The natural Instinct of a mother would be to safeguard her daughter's interest and it is unnatural to suppose that Chenchamma would have consented to an arrangement which would deprive her daughter and her progeny of their legitimate rights. The fact that Chenchamma was a willing party to the document furnishes indubitable proof that on the date of Ex. B-2 there were genuine, disputes between the members of the family, which, if not resolved, would have landed them in a ruinous litigation; and that It was that situation that the mediators advised them to agree to the arrangement set out in Ex. B-2.
26. It is worthy of note that this arrangement was acted upon without challenge for nearly half a century, Chenchamma herself was alive for nearly a period of 50 years after the date of Ex. B-2. The arrangement was made in 1895 and she died in 1945. During this long period, she never impugned the arrangement. Bhramaramba was alive till the year 1924. She never challenged the transaction. We may also note that the plaintiff has confined the scope of his suit to the, properties alotted to Seshamma and Santamma under Ex. B-2, which he now claims as the grandson of Ramaswami, or in the alternative, as the sister's son of Abbayya. It is admitted by the plaintiff that he is now in possession of the other properties covered by Ex. B-2 allotted to Chenchamma and Bhramaramba under it. Viewed in this background, there can be no doubt that Ex. 8-2 amounts to a valid family arrangement.
27. Lastly, there is the question of limitation. The plaintiff's age was mentioned as 55 years in the plaint, which was filed in 1957. He must have been therefore; born in or about the year 1902 and must have attained majority by about the year 1920. It would appear that his mother, Bhramaramba, was married sometime before the year 1900. She lived upto the year 1924. Chenchamma herself lived upto the year 1945. The allegations in favour of defendants 5 to 28 range from the year 3311 to 1950. In fact, barring the sale deed, Ex. B-9 which was of the year 1950, all the other transactions of sale were before the year 1945. During this long period, neither Chenchamma nor Bhramaramba nor even the plaintiff, who must have had knowledge of these all anations, made any attempt whatsoever to impugn them. The explanation for the long in action on the part of the plaintiff, his mother and grandmother, was that the plaintiff acquired rights as the sister's son of Abbayya, Junior on!y in the year 1929 when the Hindu Law of inheritance Amendment) Act was passed and that, therefore, there was no occasion for him to challenge the transactions earlier. This contention is advanced on the basis that Abbayya Junior and not Ramaswami, was the last male holder.
28. The question then is, was Abbayya Junior, the fast male-holder and not Ramaswami. It would indeed appear that Ramaswami left the family to join a Matham before the year 1890. He was not heard of since that year. As pointed out in the well known passage from In re, Phene's Trusts, (1870) 5 Ch. A 139 :
"If a person, has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died Is not a matter of presumption but of evidence and the onus of proving that the death lock place at any particular time within the even years lies upon the person who claims a right to the establishment of which that fact is essential."
29. Their Lordships of the Judicial Committee, after extracting the above passage, stated as follows in Lal Chand v. Ramrup Gir, 50 Mad LJ 289 ; (AIR 1926 PC 9):
"Following these words it is constantly assumed --not perhaps unnaturally -- that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, If, instead of speaking of 3 person who had not been heard of for seven years, it described the period of disappearance as one "of not less than seven years".
30. The presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of 7 years and not to the time of that at any particular period.
31. It may be presumed that Ramaswami was not alive after the expiry of the period of seven years from the date of his disappearance, which was in 1890. But it would not be right to presume that he died at any time within the aforesaid period. That is a fact which must be proved like any other fact and the onus of proving that the death of Ramaswamy took place at any particular time within the seven years, lies upon the plaintiff. The entire basis, on which the argument of the learned Advocate General rested, was that Ramaswami predeceased his son, Abbayya Junior whose death admittedly occurred on March 1, 1894, and that therefore, Abbayya Junior became the sole surviving coparcener. But if what we have stated is the true rule of presumption, the onus of proving the fact that Ramaswamy predeceased his son, Abbayya (Junior), and that his death took place before March 1, 1894, would necessarily be on the plaintiff. There being, however, no evidence adduced In proof of the fact that Ramaswami predeceased his son. Abbayya Junior cart by no means be considered last full owner.
32. At this juncture, it Is necessary to consider the contention advanced on behalf of the contesting respondents that the plaintiff's right to sue is barred by limitation.
33. It is argued that Article 141 of the Limitation Act is not applicable as the executants of Ex. 8-2 divided the family property among themselves each taking an absolute estate even, before Ramaswami could be presumed to have died and, therefore, time commenced to run against the last full owner Ramaswami. It is well settled that Article 141 is inapplicable when time has commenced to run against the last full-owner, as in such a case it continues to run and is not suspended or arrested by the fact that the owner is succeeded by a female entitled to a woman's qualified estate; after the statutory period has run out, ail persons claiming through the owner ara barred. The Madras High Court in Ramayya v. Kotamma, 42 Mad LJ 319 : (AIR 1922 Mad 59) and Saranga Sesha Naidu v. Periasami Odayar, ILR 44 Mad 951 : (AIR 1921 Mad 272 (2)) has taken this view. It may be mentioned that on this aspect the same view was taken by the High Courts of Bombay and Calcutta.
34. The present suit was instituted by the appellant on January 2, 1957, exactly on the last date before the period of twelve years expired from the date of the death of Chenchamma, which occurred on January 1, 1945. The last full owner was Ramaswami and even during his life time, the parties to Ex. B-2 divided the family properties among themselves, each of them taking an absolute estate. Their possession was therefore adverse to the plaintiffs estate. That fact that Ramaswami's widow lived up to January t, 1945, would not therefore entitle the plaintiff to sue within twelve years from the date of her death. His claim is also barred by limitation.
35. On the above conclusions, it follows that the appeal fails, and It Is accordingly dismissed with costs of the contesting respondents.
36. Respondents 2 to 5, 10 to 19, 21 to 25 have filed a Memorandum of Cross-objections disputing the direction given by the court below that the parties, other than defendants 25 and 27, who were unnecessarily impleaded should bear their own costs. The direction given by the learned Judge is, In our opinion, proper, and we, do not find any ground to interfere with the discretion exercised by the court below. The Memorandum of Cross objections, therefore, fails and is dismissed with casts of the plaintiff.