2021 Supreme(Mad) 285

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N. MANJULA, J.
V. Nagammal & Others – Appellant
Versus
Palanisamy @ Kannaraisu – Respondent
S.A. No. 472 of 2010 & M.P. No. 1 of 2010
Decided On : 29-03-2021

Point of Law: Family property - family settlement must be a bona fide one in order to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.

Headnote:

Registration Act – Section 17 – Code of Civil Procedure, 1908 – Section 100 – Will – Compromise Decree – Second Appeal has been filed against the Judgement and Decree in A.S. on the file of the Principal District Judge's Court, Coimbatore, modifying the judgement and the decree in O.S. on the file of the II Additional Subordinate Court, Coimbatore and set aside the same – Plaintiffs and defendant are the sisters and brother. – Suit property is a self-acquired property of their father. – He executed his last Will – As per the Will, he bequeathed life estate to his wife and vested remainders to his children – Plaintiffs' mother Ramathal predeceased their father. – Father also died – Subsequent to the death of their father, Will came into effect and plaintiffs and defendant have inherited the same and they are in joint enjoyment. – Defendant is physically cultivating the property on behalf of the other sharers. – But he did not cooperate with the plaintiffs for an amicable division of the suit property and hence, the plaintiffs have filed this suit for partition and division of their 3/4th share in the suit property. – Suit property is not the self-acquired property of Perumal Gowder but it is the ancestral property of Perumal Gowder and the respondent/defendant. – Property described under the said Survey does not belong to the family of the respondent/defendant. – When Perumal Gowder was alive, the defendant filed a suit for partition in O.S. and the suit ended in a compromise and the compromise decree was passed – As per the compromise decree, the suit property which is described as the first item of 'A' Schedule, has been allotted to the share of the defendant and property described as 'B' Schedule in the compromise decree, has been allotted to the share of the plaintiffs’ father and hence, the plaintiffs cannot claim any share in the suit property which is shown as first item in Schedule 'A' of Ex.B2 – Will was superseded by the compromise decree passed in O.S. – Plaintiffs are not in joint enjoyment of the property and they are not entitled to any share in the suit property and hence, the suit was dismissed. –

Finding of the Court:

Being the son of Perumal Gowder and who intends to adopt the fair family arrangement formula for getting the benefit of unregistered compromise decree, the respondent ought to have included the plaintiffs also in the family arrangement. – In the absence of such an exercise, it is difficult to accept that the compromise decree passed in the earlier partition suit preceded a family arrangement and that is done in all fairness in order to settle the claims of all the members of the family. – In fact, had the alleged family arrangement included these plaintiffs, the necessity to file this suit would not have arisen at all. – It is true that the father Perumal Gowder has got every right to alienate his self acquired property to any of his children during his lifetime. – Had the said 2.40 acres in Survey No.48/24 was conveyed in favour of the respondent by virtue of any other conveyance other than an unregistered compromise, that would have passed a valid title in favour of the respondent. – Compromise decree passed in the earlier suit ought to have been registered for two reasons. – One, the daughters in whose presence the fact of throwing into the joint family stock should have been decided in order to deny them a share, were not impleaded. – Second, to call the compromise decree as an off-shoot of fair family arrangement, it should have been done in the presence of and with the participation of all the family members, which would also include daughters. – Court hold that the respondent/defendant has not fulfilled the first proposition laid down in Kale and Ors in order to take advantage of the findings rendered in Khushi Ram. – So he can not claim that he has got an exclusive title over 2.40 acres in S.No.48/24 thorough the unregistered compromise decree passed in the earlier partition suit in O.S. – Hence, the substantial questions of law are answered in favour of the Appellants. –

Result: Second Appeal Allowed