A family settlement that is acted upon by the parties is valid and binding on them.

P. K. MISRA, J.

( 1 ) - Plaintiffs are the appellants against a reversing decision in a suit for partition.

( 2 ) BRUNDABAN Biswal and Sadhu Biswal are admittedly two brothers. Defendants 5 and 6 are the sons of Brundaban. There is no dispute that Sadhu had a son named Budhu who is dead and defendants 1 to 4 are the heirs of late Budhu. Plaintiffs claim that plaintiff No. 2 mandodari is the widow of Sadhu and plaintiff no. 1 Panu is their son. Defendant No. 7 Suka is admittedly daughter of Sadhu. According to the plaintiffs case, 'a' and 'b' Schedule properties were the ancestral properties of brundaban and Sadhu, whereas 'c and 'd' schedule properties are the joint family properties belonging to the branch of Sadhu alone: plaintiffs claim l/6th share each in respect of 'a' and 'b' Schedule properties and l/3rd share each in respect of 'c" and 'd' Schedule properties.

( 3 ) DEFENDANTS 5 and 6 remained ex parte. Defendants 1 to 4 and 7 filed joint written statement. According to their case, Budhu is the son of Sadhu through Nadia. It is further claimed by them that Mandodari (plaintiff. No. 2) was not the legally married wife of Sadhu, but was the kept of Sadhu and Panu' (plaintiff no. 1) is the son of Sadhu through Mandodari. According to their case, 'c' Schedule property was inherited by Nadia from her father and on her death, the property devolved upon her son Budhu, but since Budhu was a minor and Sadhu was looking after the properties, the said 'c' Schedule properties were wrongly recorded in the name of Sadhu in the Settlement Record-of-Rights. It is further claimed that after death' of Sadhu, Budhu acquired D' schedule properties. It is further claimed that in the year 1962, after the death of Sadhu, an amicable settlement was brought about by the villagers between the plaintiffs on the one hand and defendants 1 to 4 and 7 on the other, !n the sajd amicable settlement, half share of sadhu in 'a' and 'b' Schedule properties was given to the plaintiffs and they were also given ac. 1,00 out of plot No. 874 in 'c' Schedule and Ac. 0:02 decimals of homestead out of the said 'c' Schedule properties. The remaining lands in 'c' Schedule and the entire property in 'd' Schedule remained with Budhu. In view of such family settlement which has been acted upon, the suit for partition is not maintainable. It is further claimed by them in the written statement that the properties given to the plaintiffs in 'a' and 'b' Schedule properties had been transferred by them to defendants 5 and 6.

( 4 ) THE trial court found that 'd' Schedule property was the self-acquired property of late budhu, but 'c' Schedule property was the property of Sadhu. It was further found that nadia was the first wife and Mandodari (plaintiff No. 2) was the second wife of Sadhu and there was no partition between late Sadhu and his brother, nor there was any family settlement. Accordingly, the trial court passed a decree for partition holding that plaintiffs are entitled to l/6th, share each in 'a' and 'b' schedule properties and l/3rd share in 'c' schedule properties.

( 5 ) AGAINST the aforesaid decree, appeal was filed bydefendants 1 to 4 and 7. The lower appellate court found that plaintiff No. 2 mandodari was not the legally married wife of sadhu and as such Panu being the illegitimate son was not entitled to any share. The appellate court also confirmed the finding of the trial court to the effect that 'c Schedule property was the property of Sadhu and not of nadia, as claimed by defendants 1 to 4 and 7 the lower appellate court discarded the family settlement. Though it was found that 'a', 'b' and 'c' Schedule properties had not been partitioned, the suit was dismissed, as according to the lower appellate court, the plaintiffs did not have any share in any of these properties.

( 6 ) IN the present appeal, it is contended that in view of the documentary evidence on record including Ext. A, the Ranch Faisala, the findings of the lower appellate court that