Judgement

CHANDRA REDDY, J. : -

This appeal is brought by the 1st defendant from the judgment of the Subordinate Judge of Kakinada decreeing the plaintiffs suit for partition. The 1st defendant is the father and defendants 2 and 3 the brothers respectively of the plaintiff. Pending the suit, the 4th defendant died leaving behind him his widow who comes on record as the 6th defendant. One of the tenants is impleaded as the 5th defendant. Defendants 7 to 13 were added supplementally as they claim certain items of the property in their possession as belonging to the joint family.

2. The facts material for the decision of the appeal may be briefly recalled :

The parties are Telis governed by the Mitakshara school of Hindu Law and are residents of Tuni. The father of the 1st defendant was one Antarvedi belonging to the neighbouring village called Thetagunta and after his marriage with Kondamma he came away to Tuni and took up residence in his father-in-laws house. Antarvedi died on 8-1-1901, survived by his widow Kondamma, 1st defendant and three daughters by name Mangayamma, Ammanna and Veeramma the last two being defendants 8 and 9. The 1st defendant who was very young at the time was brought up by his grand-mother Somamma and mother Kondamma and the former gave him some properties which he invested in business and acquired with the aid of it considerable properties, movable and immovable.

In or about the year 1941, disputes arose between the plaintiff and his father which resulted in an arrangement by and under which the four sons together were given Rs. 8,000/- ; some residential houses and about ten acres of land. They were divided in equal moieties by the four sons. Not satisfied with this, the plaintiff laid the present action claiming a l/5th share in the properties described in A, B and C schedules. Schedule A relating to lands, B to houses and sites and C to cash, pledges and other movables on the basis of their being joint family properties, alleging that his grand-father Antarvedi died owning properties worth about 1,00,000/- which was improved by his son the 1st defendant in such a way that the money-lending business runs up to a tune of Rs. 3,00,000/- and the immovable property worth Rs. 2,00,000/-, that when differences arose among the members of the family he was put in possession of 10 acres of land the income from which he was enjoying, that when he fell ill in the year 1945 the 1st defendant took them back and that he refused to re-deliver them unless and until he gave a release in respect of his share in the family properties.

3. The answer of the 1st defendant to the suit was that the properties in suit belonged to him exclusively in which none of his sons had any interest and that in any event the arrangement, whereunder each of the sons was a recipient of about 10 acres of wet land, cash of Rs. 2,000/- and a house to live in, was binding on them and therefore the present suit for partition was not maintainable.

4. The 2nd defendant filed a written statement supporting the 1st defendant. The 3rd and 4th defendants adopted the written statement of the 2nd defendant. When the 6th defendant came on record, she assumed a different attitude and wanted to sail with the plaintiff.

5. The trial Court, on the findings that the properties in suit were not the self-acquisitions of the defendant but belonged to the joint family and that, that division evidenced by Ex. C-1 was inadmissible for want of stamp and registration, entered judgment for the plaintiff.

6. The trial Judge, however, relegated the 6th defendant to a separate suit inasmuch as her defence was in conflict with the position taken up by the 4th defendant. The suit against defendants 7 to 13 wag dismissed and that is not called in question before us.

7. Dissatisfied with the decree, the 1st defendant has come up in appeal. Pending the appeal, he died leaving a will bequeathing his properties to his widow with a limited interest who has come on record as the 2nd appellant and vested remainder to his two sons, the 2nd and 3rd defendants. In this appeal, the correctness of the conclusions of the lower Court in all the issues are challenged.

8. We will first deal with the controversy bearing on the nature of the properties which are the subject of this appeal. The parties have joined issue on whether they are the joint family properties or the separate properties of the 1st defendant. The assertion made on behalf of the plaintiff was that they were the ancestral property in which he had acquired an interest by birth along with the 1st defendant and defendants 2 to 4. This is repudiated by the 1st defendant who claimed them as his self-acquisitions. Both sides entered evidence in proof of their respective cases.

9. Before assessing the probative value of the oral and documentary evidence adduced by the parties, it is well to state the true legal position on the subject. The existence of joint family property is not a pre-requisite to constitute a joint family. There is no presumption that the property held by a member of a joint Hindu family is joint. It is for the person asserting that any item is joint to prove it to be so. If it is established that the family owned joint property which might have reasonably formed the nucleus wherefrom the property in dispute could have been acquired, there is a shifting of the burden to the parties setting up exclusive title to the properties on the ground of acquisition as a result of his own exertions and without any help from the joint family property. These principles are now well settled and it is unnecessary to resort to copious citation after the judgment of the Supreme Court In Srinivas Krishnarao Kango V. Narayan Devji Kango, 1954-1 Mad LJ 630 : (AIR 1954 SC 379) (A), which approved of the decision of the Privy Council in Appalaswamy v. Suryanarayanamurty, ILR (1948) Mad 440 : (AIR 1947 PC 189) (B), which stated the law on the topic thus :

"The Hindu Law upon this aspect of the case is well-settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint, to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleous from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property : See Babubhai Girdharlal v Ujamlal Hargovandas ILR (1937) Bom 708 : ( AIR 1937 Bom 446) (C); Vsnkatara. mayya v. Seshamma, ILR (1937) Mad 1012 : ( AIR 1937 Mad 538) (D); Vythianatha v. Varadaraja, ILR (1938) Mad 696 : ( AIR 1938 Mad 841) (E)."

The Supreme Court reiterated the doctrine stated above. Hearing these rules in mind, we have to scan the evidence let in by both the parties.

10. It is convenient first to weigh the oral evidence on the side of the plaintiff. The plaintiff could not have a personal knowledge of the state of the family as at the time when Antarvedi died or even when the 1st defendant assumed management. His grand-father came away to Tuni in or about the year 1888 and died in 1901. His deposition mainly related to the nature of the arrangement embodied in Ex. C-1. The only person who posed to be acquainted with the affairs of Antervedi prior to his marriage and migration to Tuni is P.W. 3. He spoke to the affluent circumstances of Antervedis family at Thetagunta and to Antarvedi getting for his share Rs. 5,000/- or Rs. 6,000/-.

Despite the Subordinate Judge setting much, store by his testimony, we are inclined to think that it is worthless in view of the several defects to be noticed here. Though the witness himself stated his age to be 60 or 65 in the witness-box, the learned Judge thought that he was much older than that and he would have been in the know of things pertaining to Antervedis family at Thetagunta. This is without any foundation. There is intrinsic evidence of his age being only 60 or 65 at the time of his deposition and consequently he could not have any knowledge regarding the status of Antervedis family or the assets brought with him when he came away to Tuni.

In the cross-examination, he stated that he was only 15 or 16 by the time certain lands were purchased by the 1st defendants family in the year 1003 and that he was aged about 15 years when Antervedi died. This is in conformity with his age as stated by him and does not accord with the observation of the trial Court. Further, the witness has it that he had occasion to know everything connected with Antervedis family property at Thetagunta as his brother was married in that village and consequently he had to frequent it. But, this had happened only 15 or 16 years before he gave the evidence and therefore he could not have been informed of the happenings in the eighties and nineties of the last century in relation to that family.

Another reason suggested by him for obtaining possession of relevant facts was management of 1st defendants affairs during his minority as Somamma was unable to do. First of all, this is believed by his age. He could not have been older than the first defendant and it is not natural for Somamma to make any such request. Secondly, Somamma was a person capable of looking after herself and her grandson and in fact could manage the affairs of others as revealed by Exs. B-8 and B-9. In such a situation this witness would not have been called upon to undertake any such responsibility.

In the nature of things, it was not possible for him to have any idea of the property owned by Antarvedis family or the amount of compensation got by him for his share. That this witness is not a disinterested person is gathered from his admission that his sister-in-law filed a maintenance suit against him, O.S. 305 of 1948, that she was the niece of the 1st defendant and that the latter conducted it on her behalf and gave evidence in her favour. That apart, his statement regarding the extent of property that fell to the share of Antarvedi has no evidentiary value as it is merely hearsay. This is what he said :

"My information that Antarvedi got Rs. 5,000/- and odd was what many told me........I cannot now particularise who told me."

This, his evidence does not lend any support to the plaintiffs case. On the other hand, the admissions made by this witness render considerable assistance to the defence which will be referred to in another context.

11. Of the documents the only one which is of some importance and on which the plaintiff sought to mainly rest his case is Ex. A-3 an inventory prepared by the Commissioner. Amongst the papers inventoried by the Commissioner, there was a list of loans which included three sums Rs. 34/-, 6/- and 10/- advanced by Antarvedi on 28-1-1898, 10-2-1897 and 15-6-1897 respectively to three persons mentioned therein as also a usufructuary mortgage covering an extent of 5 acres and odd for Rs. 1,200/- executed in favour of Yendapalli Antarvedi by Peravalli Peranna.

It appears from the evidence of the 1st defendant that the property comprised in this mortgage was purchased by him some time after the death of the mortgagee for Rs. 2,000/- in a Court sale held in execution of a decree obtained by the zamindar of Pittapuram against the mortgagor the balance of consideration having been paid by him. This is traceable to item 5 of A schedule. There is no evidence as to the use to which the sum of Rs. 50/- made up of the simple three loans mentioned above was put. The case of the defendants with regard to the sum of Rs. 1,200/- was that this was not money belonging to Antarvedi but was invested by his mother-in-law in a mortgage in the name of Antarvedi only to give him some status.

We need not pause to consider the truth or otherwise of it and we may proceed on the basis that the title of Antarvedi to this item is made out. But the whole of this property is intact and unencumbered and is available for division. The learned trial Judge thought that the sum of Rs. 1,200/- lent on mortgage was a substantial asset which the 1st defendant inherited. In our opinion this could not have been of any assistance in the acquisition of such valuable properties as are involved in this litigation. We have no idea as to what the income from these lands was. No attempt was made by the plaintiff to prove the income yielded by these lands or how much was saved out of it. Even on an exaggerated estimate of the then net income it could not be put beyond Rs. 150/-.

It was urged that in addition to these lands Antarvedi had a country gingili oil mill and a pair of bulls, but here also we are not told how much Antarvedi was making out of this. At the most, the income derived from the property and the gingili oil mill could not have been more than what was sufficient to maintain a family consisting of a wife and a husband, a son and. three daughters. The admission of D. W. 1, the mother of the 1st defendant, that she and her husband had no separate mess of theirs but were given free food by her mother is pressed into service by the Respondents. But in addition to food, there are several other items of household expenditure to be incurred in the maintenance of a family and Antarvedis income would not have been more than that required for meeting the family expenses.

It is not also shown that after applying the sums of money, either from the lands or the sale of gingili oil, to the expenses of the family there was a surplus left in his hands which was diverted to be accumulated. At the most, it may be said that there it was these savings that were utilised to lend to people as disclosed in Ex. A-3. Further, having regard to the magnitude of the properties and the smallness of the income derived from these sources, the latter could not be said to be the foundation for these purchases. Besides the four items set out in the list under Ex. A-3 Antarvedi is not shown to have left any other property.

The learned Judge rested his conclusion that Antarvedi must have brought properties of considerable value with him when he wound up his affairs at Thetagunta also upon Ex. B-30 a sale made by one Amanna in favour of the 1st defendant on 1-10-1948. as also under Ex. B-18 a sale by Antarvedis adopted son in favour of Chitrada Ammanna. Under Ex. B-30 an extent of Ac. 4-14 cents was conveyed for a consideration of Rs. 900/-. The subject-matter of the second document was Ac. 7-83 cents of wet and dry land for Rs. 500/-. The learned Judge erred in thinking that the vendor under Ex. B-30 was Antarvedis brothers widow. Evidently, he was led into the mistake by the vendors husbands name being the same as Antarvedis brother. The widow of Subbarayudu, Antarvedis brother, was Bullam-mayi and not Ammanna.

Be that as it may, the transaction was nearly half a century after Antarvedi migrated to Tuni, besides the sale being only of one acre. Further the recitals in the document show that the properties conveyed under that document were purchased with the sale proceeds of the jewellery of the vendors daughter. Therefore, the property could not be traced to the original family of Antarvedi. Ex. B-18 also does not advance the plaintiffs case. For one thing, this also took place 50 years after the material time and therefore could not be connected with the property belonging to that family; secondly, its value was only Rs. 500/-; and lastly it was acquired by the vendors father only in 1934.

So, these documents do not in any way establish that Antarvedis family at Thetagunta possessed valuable properties and he must have got some compensation in lieu of his share which, must have contributed to the acquisition of the suit properties. They cannot have the effect that is attributed to them by the Judge. The other reasons assigned by the "trial court for its opinion on this part of the case are unsound as they have no relation to the hard facts. He thought that the various transactions which the 1st defendant had shortly before 1910 and subsequently such as the lendings on mortgages had their origin and development in the assets left by Antarvedi.

This is not borne out by any material On the other hand, it is opposed to the oral and documentary evidence on record and to the admissions made by P. W. 3 which will be referred to presently and which were not properly appreciated by the lower court. His conclusions in this respect are based on surmises and not on substantive evidence and to some extent the product of misconstructing the testimony of P. W. 3 as contained in the cross-examination. We may mention that the counsel for the respondent did not make any effort to sustain the judgment under appeal on any of the grounds enunciated in the judgment.

12. The argument next pressed upon us was that as the plaintiff had established the existence of some nucleus inherited by the 1st defendant, the latter had to establish affirmatively that the whole of the suit property was acquired by his own exertions. For this proposition, support is sought from ILR (1948) Mad 440 : (AIR 1947 PC 189) (B). We do not think that that ruling has any such effect. There, the father had obtained under a partition deed properties of the value of Rs. 7,220/- including a share in a rice-mill and outstandings of the value of Rs. 3,500/- and 6 acres of land.

It was in view of the extent and nature of the property which the father acquired under the partition deed their Lordships observed that the properties which the father got and which as between him and his sons was joint family property cast upon the appellant the burden of proving that the property which he possessed at the time of the suit was the self-acquired property. Nevertheless, the Privy Council decided that the various properties which the father acquired at a total expenditure of about Rs. 55,000/- were the separate property of the father.

These observations of their Lordships should be understood in the context of these facts. The nucleus embraced a share in a running business and lands capable of producing substantial income and also outstandings and the acquisitions there were made during a long period of 16 years. There was a possibility of the joint family making a contribution therefore and there is no warrant for construing it as an abstract proposition of law. It is a question of fact to be determined on the facts of each case.

On the material in that case, it was thought that there was some property which could have aided the father in making the purchases. In spite of this, having regard to the extent of the properties involved in the suit and the smallness of the inheritance, it was decided that the burden was satisfactorily discharged by the father. In that connection, the following observations of Sir John Beaumont may be noted : -

"The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards expenses of the family and there is no evidence from which it can be held that the nucleus of the joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement."

We cannot therefore derive any help from that pronouncement.

13. A similar argument based upon ILR 1948 Mad. 440 : (AIR 1947 P. C. 189) (B) was repelled by the Supreme Court in 1954-1 Mad LT 630 : (AIR 1954 SC 379) (A) with the following remarks : -

"Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to be considered is income which the nucleus yields."

Referring to the passage from the judgment of the Privy Council extracted above, the Supreme Court stated that nucleus there was of such a nature as would give some assistance in the acquisitions.

14. Thus, the submission on behalf of the respondent is not substantiated by I. L. R (1948) Mad. 440 : (AIR 1947 P. C. 189) (B). It is not sufficient to show that the family possessed some joint property. What is essential is that the property should be of such a nature and value as to form the nucleus for the acquisitions claimed to be joint. It is only when this is established the onus is shifted on to the person asserting exclusive title to the property.

15. Assuming the burden was upon the 1st defendant to make out that the properties involved in the appeal were the result of his exertions and were not bought out of a joint family funds, we think he had successfully discharged it. Admittedly, all the properties were purchased by and in the name of the 1st defendant. It is true that a document for the acquisition of item 4 in A schedule is not produced, but it is established beyond doubt with reference to some of the documents that it was acquired by the 1st defendant in or about the year 1937. Besides the oral evidence of the 1st defendant and his mother Kondamma examined as D. Ws. 2 and 1 respectively, there is abundant documentary evidence in proof of the defendants case that large fortune acquired by him was largely due to the moneys which he got from his grand-mother Somamma and his labour.

There is uncontradicted evidence of the 1st defendant and his mother that the former was given some money by his grand-mother which he invested in gingili and paddy business and made much profit. Both the 1st defendant and his mother have deposed to the help which the former got from his maternal grand-mother Somamma. It appears that the maternal great grandmother of the 1st defendant Ammanna executed a will bequeathing her properties to her two daughters-in-law Somamma and another Sooramma in certain shares in the year 1888 under Ex. B-5. Subsequently, Sooramma relinquished her interest in that property in favour of Somamma.

This Somamma seems to have been a person endowed with business talent and was trading in paddy gingili etc.; with the aid of what her mother-in-law left her and what she must have got from her husband. That she was doing business, made profits in the business and amassed a good fortune is evident from Ex. B-10 series and Ex. B-6 the latter of which establishes that she was assessed to income-tax. It is plain that she passed on all her properties to her grandson the 1st defendant and her daughter Kondamma. The 1st defendant utilised the funds furnished to him by his grand-mother to do business in paddy and gingili.

We have his evidence that he got between 1910 and 1921 Rs. 25,000/- by way of profits. The theory of the 1st defendant making a huge fortune with the help of what Somamma gave him and his own exertions is sought to be belittled by referring to a statement made by the 1st defendant in the witness-box that Somamma gave him in 1910 Rs. 4.000/- or Rs. 3,000/- worth of property, cash and jewels and no immovables, and that he did not lend it to others but invested it in trade. We do not think this in any way detracts from the 1st defendants case. Surely, Rs. 4,000/- in the hands of a capable businessman could produce enough profits in the course of a long number of years to make a large fortune.

There is no inherent improbability in the first defendant, in the course of 11 years making profits amounting to Rs. 25,000/- having regard to the start he had. It is also his evidence that besides Rs. 4,000/- Somamma had some more money. That she had other resources in addition to these Rs. 4,000/- is plain not only from the testimony of D. W. 2 but from the admissions of P. W. 3 that in regard to the mortgage executed in favour of the 1st defendant and P. W. 3 during the minority of the former it was Somamma that advanced Rs. 15,000/- towards the share of her grandson.

He had also stated that before this mortgage was executed the witness used to give the promissory notes for moneys lent on her behalf. Another statement made by P. W. 3 which is conclusive in favour of the defence is that the 1st defendant traded with the money given to him by Somamma. The answers to the questions posed by the trial court in paragraphs 31 and 32 are furnished by these witnesses and the relevant documents of which mention has been made.

Thus the documents read in the light of the testimony of D. Ws. 1 and 2 which seems to be of an acceptable character, especially of D. W. 1 who was unshaken despite being subjected to searching cross-examination and the admissions of P. W. 3 can only lead to the reasonable inference that the properties which are the subject of this appeal excepting a small portion which is item 5 were acquired without the aid of the joint family, were traceable only to his labour and the energy and to the help derived from his maternal grand-mother.

16. We may now turn our attention to the alternative point raised by Mr. Balaparameswara Rao the counsel for the respondent that though originally the properties in the suit were the separate properties of the 1st defendant they were converted into joint family properties and consequently the plaintiff could not be denied his 1/5th share in these properties and cited to us Pearey Lal v. Nanak Chand, AIR 1948 PC 108 (F), Subramania Iyer v. Commr. of Income Tax. 1955-2 MLJ 405 : (AIR 1955 Mad 623) (G) and Duggirala Sadashiva Vittal v. Bolla Rattain, 1957 Andh LT 179 : (AIR 1958 Andhra Pradesh 145) (H). The grounds of the judgment enunciated in those rulings are well known and the legal position in that regard is incontrovertible.

It is open to a person who has acquired properties by his own exertions to treat them as the joint family properties and in order to impress them with the latter character no formalities are necessary, the only question being one of intention on the part of the owner. But the onus of proving blending is heavily on a person who claims that the owner acted in such a manner as to raise reasonable inference that he did convert this property into joint family property. The foundation for this theory of blending is mainly Ex. A-3. In this inventory, there is a reference to an income-tax assessment order. We do not think this can furnish any basis for the story of blending. All that it shows is that the assesse was Yendapalli Venkataraju and was assessed on an income of Rs. 4,569/- in the year 1937-38.

There is another entry in regard to 1943-44 about an income-tax notice to pay Rs. 4,333-15-0. The third entry relates to notice to pay Rs. 203-12-0 in the year 1944-45. Neither the income-tax assessment order nor the notice nor even copies thereof were filed into court, nor even the 1st defendant called upon to produce any of them. The Commissioner who made an inventory had not gone into the witness-box and we have no information as to the nature of these documents. The plaintiff does not afford us any useful material in this regard. All that he stated was that the properties that were inventoried under Ex. A-3 is joint family property. What gave rise to the argument that this document evidences blending was that there is a reference to Hindu undivided family.

It is not clear whether that related to the assessee because the words "Hindu undivided family" are separated from the word "assessee" by a line. We cannot, therefore, connect the assessee with a Hindu undivided family. We do not know whether one of the columns in the assessment order was merely copied or what it indicates. Beyond the mention of the words "Hindu undivided family" in the list there is nothing to suggest that Venkataraju was assessed as the head of the Hindu undivided family. The statement of the 1st defendant, that he did not know if the assessment was on the basis of the property belonging to the family as he did not know its contents, being unacquainted with English, cannot be construed as an admission that the assessment related to the joint family income.

17. In this setting, we doubt very much whether AIR 1948 PC 108 (F) carries the plaintiff very far. The passage on which reliance was placed for the respondents is contained at page 110 : -

"It is therefore necessary to consider the other matters founded on by the parties. Among these there is nothing equal in importance to the respondents testimony in his examination-in-chief that the cycle business was assessed to income-tax as a joint Hindu family business, and that the assessment notices were in the appellants possession. He was not cross-examined on these statements and he was not contradicted. All that the appellant said about them is that the business had been assessed for twenty years and that he had not been keeping the notices received from the income-tax department."

These remarks cannot apply to the present case as such a situation does not exist here. As we have remarked, no light is thrown by any oral evidence on the nature of the contents. Whatever might have been the position if there was an unequivocal statement that the assessment was on the footing of the income being from the joint family properties there is no scope for any such assumption giving rise to the theory of blending. Even otherwise, it could not have the effect of declaring his intention to treat an income as joint family income because we do not know whether it is based on the return submitted by him or the income-tax authorities assessed him to tax in default of the submission. It is futile to guess and speculate as to what the real recitals in the order of assessment were.

That apart, it is only a piece of evidence which has to be taken into account in considering the question. This has to be assessed along with other factors. A single instance such as this cannot justify the view that he had thrown his acquisitions into common stock. Presumably, an acquirer intends to retain dominion over it. So, the intention to abandon his exclusive title must be manifested clearly by acts which are inconsistent with a desire to keep them at his absolute disposal. That circumstance by itself does not amount to a clear expression of intention to convert it into joint family property. Nor can much significance be attached to the plaintiff joining Exs. A-1 and A-2 sale deeds executed by the 1st. defendant in favour of strangers.

With regard to Ex. A-1 the vendee requested that the sons of the vendor also should join the execution. The same may be said of Ex. A-2 also. Even otherwise by themselves, they are insufficient to show that the character of all the acquisitions was changed. So, it does not follow that all the properties in suit were brought into the hotchpot by the 1st defendant and it should be limited to the properties so treated. There is no presumption in favour of a general blending and there must be proof of it.

18. Further this need not detain us any longer for the reason that the pleadings do not put forward any case of treatment of the properties as joint family properties by defendant 1. In fact it flies in the face of paragraph 4 of the plaint which categorically recites that the 1st defendants father died owning properties worth a lakh of rupees which was taken over by the son and which was improved in such a way that on the date of the plaint it amounted to Rs. 5,00,000/-- Rs. 3,00,000/- in the shape of money-lending business and Rs. 2,00,000/- worth of immovable property, nor is there any issue bearing on this.

19.On this discussion, we must hold that the title to the properties resided in the father and the plaintiff cannot claim a share in the properties in suit either on the ground that they were ancestral properties in which he had acquired a right by birth or on the basis of their being treated as joint family properties, his father having given up his exclusive right to them.

20. There is another ground on which the plaintiff should fail. It is pleaded that there was an arrangement in or about the year 1942 by and under which he along with the other sons of the 1st defendant received some properties in full satisfaction of their claims and this operates as a bar to the present action for partition. This arrangement was reduced to writing and the terms thereof can be gleaned from Ex. C-1. This was preceded by separate living of the plaintiff because of quarrels between the women-folk in the family. Further troubles seem to have arisen consequent upon the refusal of the 1st defendant to concede a share to the sons in the properties setting up exclusive title to the properties.

These disputes were amicably settled by the intervention of some of the elders in the village as a result of which each of the sons including the plaintiff got about 10 acres of land, a house to live in and a liquid cash of Rs. 2,000/-. By reason of this it was pleaded by defendants 1 to 4 that the rights of the plaintiff, if any, became completely satisfied. An attempt was made to get over this difficulty by introducing recitals in the plaint that this arrangement became ineffective by the conduct of the 1st defendant who took back the lands given to the plaintiff representing that he would re-deliver it in case the plaintiff gave a release in respect of his share.

Before us, the ground was shifted and it was urged that it was only a temporary arrangement resorted to by the parties for the sake of convenience and enjoyment of properties and that further no effect could be given to it as Ex. C-1 is not registered. We feel that the argument that it was a provisional arrangement is devoid of substance. A reference to the contents of the document makes it abundantly clear that it was a final and an irrevocable arrangement. It is specifically stated that towards their share in regard to silver, gold and cash whether it pertained to family property or self-acquisition and without reference to credit and debit accounts they had received a sum of Rs. 8,000/- which they divided in four equal shares, each a house to live in and properties fetching an income of about Rs. 200/- and that they had no further claim to the properties left in the possession of the 1st defendant.

There is also the significant recital that thenceforth they should live as members of divided Hindu family and had nothing to do with the properties or assets allotted to the share of the other. In fact, as we have already pointed out, the case of the plaintiff as disclosed in the plaint is not that it was a provisional arrangement but that it became ineffectual by reason of the 1st defendant taking back properties. It is categorically stated there that even before the understanding referred to in Ex. C-1 the parties had become divided in status.

If there was a division in status and if anterior to the arrangement the members are allotted certain properties it would amount to an outright arrangement and it is inconsistent with its being a temporary one. That it was a permanent arrangement is also plain from Exs. B-1 and B-2, B-1 being registered letter which was written by the four sons to the 1st defendant on the same date as Ex. C-1, and B-2 an account book in which the plaintiff and his three brothers acknowledged receipt of Rs. 2,000/- towards their share and re- ferred to the partition. The registered letter clearly confirms that the division was final and was not meant to be reopened at a future date.

There is a statement in it to the effect that the 1st defendant would not in future be answerable to the debts either contracted previously or to be contracted in future and that he had nothing to do with their assets and liabilities. It was also stated inter alia that each of the sons had obtained towards the fixed value of the entire movable properties a sum of Rs. 2,000/-, a house worth Rs. 1,000/- for residential purposes and lands worth Rs. 4,000/-. In the face of all these documents, apart from the other circumstances which will be referred to presently, it is futile to urge that there was no finality attaching to this arrangement.

21. We will next consider the case as set up in the plaint regarding the nature of the arrangement. The averment in that behalf was that the 1st defendant went back upon it by taking possession of the lands on the representations mentioned above. To prove this case, the plaintiff besides himself examined P.W. 2. He sought to confirm this version in the witness-box. P.W. 2 seeks to corroborate the plaintiff, and to lend assurance to his testimony by producing Ex. A-5, a receipt for payment of rent with the signature of the 1st defendant. In assessing the value of this document, the case of the parties on this aspect of the matter has to be borne in mind, namely, that in the year 1945 the plaintiff fell ill and the property was leased out by the 1st defendant.

They joined issue only on whether the rent paid by the lessee was received by the plaintiff or not. Assuming the rent paid was not passed on to plaintiff, that does not very much advance the plaintiffs case. The view of the trial Judge that the statement of the 1st defendant that this land was leased out under Ex. A-4 because his son the plaintiff was ill is unworthy of credit, there being nothing to substantiate it, is untenable because it is the plaintiffs case both in the plaint and in the witness-box that in 1945 when he fell ill his father took possession of the properties promising to lease them out and make over the rent to him.

Further, the evidence of D.Ws. 4 and 5 is that for the year 1946 and subsequently plaintiff had himself made arrangements for the leasing of the property and the witnesses were tenants under him. Their testimony to a great extent is borne out by the fact that in a suit by th wife of the plaintiff for her maintenance, O.S. No. 40 of 1948, one of them was impleaded as. a lessee of the plaintiff and this is probabilised by Exs. B-17 (a). B-17 (b) and B-17 (c), a registered notice issued by the plaintiff.

22. Even if no weight is given to the evidence of the witnesses and plaintiffs case were accepted as true in this regard it does not follow that the parties had not adhered to the agreement set out above. On his own showing for three years he enjoyed lands and it was only in 1945 that be was dispossessed by them In such a position his only remedy is to sue for recovery thereof

23. On this material, there can be little doubt that the parties accepted the division as a final one and confirmed it by their actings subsequently.

24. There remains the controversy regarding the inadmissibility of Ex. C-1. It is maintained that this document is inadmissible for want of stamp and registration either as a partition-deed or a release deed. On this basis an argument was advanced on the authority of Ramayya v. Achamma, ILR (1945) Mad 160 : (AIR 1944 Mad 550) (I), that the partition could not be proved by evidence apart from the document. The instant case does not fall within the purview of the rule stated in the above decision. Nor is it governed by Subbarao v. Mahalakshmamma. ILR 54 Mad 27 : (AIR 1930 Mad 883) (J) and Radhakrishnayya v. Sarasamma, 63 Mad LW 854 : (AIR 1951 Mad 213) (K), as this is not a case where prior to the execution of these documents certain terms were discussed and Exhibit C-1 is the outcome of it. The terms discussed between the parties as to the mode of division etc.; were embodied in the partition lists which were distributed amongst the parties as appears from the relevant documents.

25. Some reliance is placed on the entries in Ex. B-2 which read that the moneys were received by each of the sons present pursuant to the written arrangement and the counsel argued that they all came into existence contemporaneously and they all formed part of the transactions. The writing in the account books is not decisive of the matter. Usually, the entries attached are made after the payment and much significance cannot be attached to them. Further all these difficulties are not real since it (Ex. C-1) is only an agreement addressed to the father who evidently was anxious to avoid future trouble by having some evidence of what had already taken place. In no sense could this agreement be regarded as a partition deed.

The objection in this regard cannot be given effect to though it prevailed with the trial Court. There is therefore no scope for treating this as document which operated to bring out a division of the properties, A plain reading of it discloses that some property was given to the four sons in pursuance of the advice of the elders, that this was divided by them into four equal moieties, that partition lists were prepared and each of the sons had kept one with him. It should also be remembered that this was addressed to the father by the four sons and does not purport to be an agreement entered into between the various members of the family.

It is true that the fact that the document is styled an agreement does not relieve the parties of the necessity to engross it on a proper stamp and to get it registered if it in itself brings about a partition of the properties and the execution of a proper and formal document was not in the contemplation of the parties. But, this is not a document of that description. We are satisfied on the contents of this document that it only evidences a past transaction. Ex. C-1 clearly denotes that the properties allotted to the four sons by the father were already delivered to them that it was partitioned as amongst them and that four separate lists were prepared and each of them had taken one before the impugned agreement was thought of.

Another recital which is emphasised upon by the counsel for the appellant as a pointer in the same direction is that having received the money and obtained delivery of the properties the four sons became separate from their father. These contents suggest that the division became an accomplished fact by the time Ex. C-1 came into being. It may be that the interval of time between the actual partition and the coming into existence of the agreement is not much, but what is material is that there should be a real dissociation between the transaction and the document, though from the long interval the dissociation may be readily inferred. See Bapayya v. Ramakrishnayya, 1938-1 Mad LJ 582 : (AIR 1938 Mad 568) (L). Hence, Ex. C-1 could not be excluded on the ground of its being a partition deed and offending against the provisions of the Registration Act. The conclusion that Ex. C-1 could not constitute a deed of partition is further strengthened by its not being executed by all the members of the family. It is in favour of 1st defendant.

26. It is also difficult to regard it as a release or a relinquishment. For one thing that was not the ground upon which its admissibility was questioned in the court below. Secondly, it would not be correct to describe it as a release deed. The mere fact that there is an undertaking by each of the parties to the document not to claim a share in the properties allotted to the other and it also contains a similar request to the father is not suggestive of its being a relinquishment deed. That does not amount to a release of the interests of the shares in the property to which they are entitled.

Such a clause is a normal feature of even partition deeds, because each party relinquishes its claim to property other than that which falls to his share and recognises the right of the others to such properties. There is therefore no force in the submission that it is a release deed requiring registration.

27. In our opinion the arrangement disclosed by Ex. C-1 and confirmed by Exs. B-1 and B-2 was a family settlement. It is beyond controversy that there were disputes among the members of the family as regards the nature of the properties which stood in the name of the 1st defendant and the extent of the share to which of the sons was entitled. They were referred to the arbitration of some of the respectable people of the village and it was in accordance with their advice that an understanding was reached between the father and the sons, and Ex. C-1 is a record of what took place and the manner in which it was given effect to.

28. It is urged for the respondents that this arrangement would not be valid one for the reason that the father was not a party to it and therefore it would not bind the sons also. For this purpose our attention is called to a passage in Leading Cases in Equity" by White and Tudor at page 256 :

"Where a family arrangement is entered into upon the assumption that all the parties named in a deed will execute it, and one of them does not do so, it will not be binding upon the others although they execute it; and the result is the same where one of the parties from any incapacity, as for instance, coverture, cannot execute the deed in a valid or binding form."

Another point raised by the learned counsel for the respondents is that even if it were a family arrangement it would be inadmissible as it is not engrossed on a stamp paper and duly registered. In support of this, reference is made to Umro Singh v. Lachman Singh. 38 Ind App 104 (M), wherein it is, remarked that a document executed by the father in favour of the sons failed of effect because it was pot registered and was therefore void as regards immovable property. That decision has no bearing on the enquiry before us. In the case under citation the title to the property resided in the father and some interest under a document in question in the sons.

29. That is not the position here. The parties set up competing titles to these properties and there was an adjustment of the rights of the parties. By such an arrangement it is intended to set at rest competing claims amongst the various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of some sort in the parties and the settlement acknowledges and defined title of each of the parties. The principle governing this is laid down in Khunnilal v. Gobind Krishna Narain, ILR 33 All 356 (N). Their Lordships extracted with approval the following passage from the judgment in Lalla Oudh Beharee Lal v. Ranee Mewa Koonwar, (1868) 3 Agra HCR 82 at p. 84 (O) :

"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 recognising 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."

This view was adopted by the Privy Council in subsequent decisions and by the High Courts in India. To the same effect is the doctrine in Sahu Madho Das v. Mukand Ram, 1955-2 Mad LJ (SC) 1 : ((S) AIR 1955 SC 481) (P). If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to others, the formalities prescribed by law have to be complied with since the transferees derive their respective titles from the transferor. If, on the other hand the parties set up competing titles and the differences are solved by the compromise there is no question of one deriving title from the other and therefore the arrangement does not fall within the mischief of S. 17 read with S. 49 of the Registration Act as no interest in property is crested or declared by the document for the first time. As pointed out by the Supreme Court in Sahu Madho Das v. Pandit Mukand Ram (P) (Supra) :

"It is assumed that the title 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."

In such an event, the settlement need not be reduced to writing and even if it is embodied in a document it need not be registered.

30. We will deal with the part of the argument, namely, the invalidity of the settlement because of the father not joining it. The answer to that is that it is not by virtue of Ex. C-1 that the disputes were settled. Exhibit C-1 is only a memorandum of the transaction that had already occurred. That document shows that nothing remained to be done in pursuance of the arrangement as already indicated above, and by the time the agreement came to be executed, everything had been accomplished, the only purpose of the document evidently being to prevent the sons from disputing the factum of the arrangement later on.

So, this argument also fails and is rejected. Even independent of the document, the family arrangement could be inferred from the conduct of parties. We have shown that the plaintiff was dealing with the properties that fell to his share as owner thereof, which could only be attributed to such on arrangement. It follows that the plain- tiffs action for partition cannot be sustained as his claim had already been satisfied.

31. In the result, the judgment and decree of the trial Court are set aside and the appeal allowed. Having regard to the relationship of the parties, We feel that the best course is to direct the parties to bear their own costs throughout.

Appeal allowed.