The validity and enforceability of a family settlement, and the principle of approbate and reprobate.

B.K. Sharma, J.

1. This appeal is directed against the judgment and decree dated 17.6.2002 passed by the learned Civil Judge (Senior Division), court No. 2, West Tripura, Agartala, in Title (Partition) Suit No. 82/1998, dismissing the suit of the Plaintiff/Appellant. The suit was filed for partition of the joint properties described in the Schedule to the plaint. Be it stated here that the Plaintiff and the three Defendants are full blood brothers being the sons of Late Hiran Kumar Debbarma, who died on 30.6.1988.

2. In the suit, it was the case of the Plaintiff/Appellant that after the death of the father of the Plaintiff and the Defendants they became the joint owner of the property left behind by their father. Be it stated here that the pro forma Defendant who is the proforma Respondent in this appeal is the married daughter of Late Hiran Kumar Debbarma and she relinquished her claim over the property. Thus the Plaintiff and the Defendants became the join owners of the property in question having l/4th share each.

3. According to the Plaintiff/Appellant, differences had arisen in the management and enjoyment of the said ejmali property and the Defendant Nos. 2 and 3 demanded from the Plaintiff and the Defendant No. 1 on or about a day in the first week of April, 1998 and on 16.4.1998 asked the Plaintiff and the Defendant No. 1 to put their signatures on an agreement for affecting partition of the said property. In the plaint it was stated that the Defendant Nos. 2 and 3 deceitfully and fraudulently obtained the signatures of the Plaintiff and the Defendant No. 1 on the said, agreement papers without explaining the contents therein, which they promised to do after field markings by revenue staff. According to the Plaintiff, the Defendant Nos. 2 and 3 in connivance with a view to deprive the Plaintiff and Defendant No. 1 from the legitimate share started putting up hap hazard constructions within the suit land thereby causing sea change in the nature of the property.

4. With the aforesaid facts narrated in the plaint, the Plaintiff prayed for a judgment and decree by way of preliminary decree for partition of the property described in the schedule to the plaint and for appointment of a commission for affecting the partition in terms of the preliminary decree.

5. The Defendants contested the claim of the Petitioner by filing written statements. Contrary to the stand in the plaint that the Defendant Nos. 2 and 3 deprived the Plaintiff and the Defendant No. 1, the Defendant No. 1 filed the written statement jointly with the Defendant Nos. 2 and 3. In the written statement it was their stand that there is no question of any decree for partition inasmuch as the family settlement was already executed in respect of the property and all the parties thereto, i.e., the Plaintiff and the Defendants, put their respective signatures in the agreement for family settlement. It was their stand that acting on the said family settlement, all the brothers came into possession of the respective shares of the property and in fact, their names had also been mutated in the respective shares. It was their further stand that the suit land had already been demarcated by metes and bounds after execution of the deed of family settlement. It was also stated that the Plaintiff and the Defendants, out of their respective shares of land sold out part thereof by different sale deeds. Thus, in a nutshell it was the case of the Defendants/Respondents that the family settlement having been acted upon, there was no question of any further partition of the property and the suit filed by the Plaintiff was misconceived.

6. On the basis of the aforesaid pleadings, the learned Civil Judge formulated the following issues:

1. Is the suit maintainable in law?

2. Is the suit property is joint property of the Plaintiff Defendant Nos. 1,2 and 3?

3. Is the Plaintiff entitled to 1/4th share in the suit property?

4. Is the purported unregistered deed of partition dated 16.4.199