A family settlement is a valid and binding agreement among family members that is intended to preserve family peace and amity and to avoid future disputes.

JUDGMENT :

D.M. Patnaik, J. - In this second appeal the defendant challenges the lower appellate Court's judgment decreeing -the plaintiff's suit for delivery of vacant possession of the house.

2. Plaintiff's case is, Syed Mahamad Noor was the cousin brother of Syed Abdul Raheman, the father of the plaintiff and the defendant. Rokhia Bibi was the wife of late Syed Mahamad Noor. She had no issue through him. She adopted the plaintiff and the latter took her care staying in the disputed house, which belonged to Rokhia Bibi. Out of love and affection she executed a registered deed of settlement on 6-10-1959 and also put the plaintiff in possession of the house. Ths defendant and his father late Abdul Raheman were also signatories to the said deed. Since the defendant created disturbance in her possession, she filed the suit for declaration of title and possession.

3. The defendant contested the case by pleading that the house in question belonging to his father and the plaintiff had no interest in the property. After her marriage she was occasionally coming and staying as a guest. After the death of his father in the year 1963, he possessed the house in question in his own right, title and interest. With regard to the document, he pleaded that the same was not acted upon. In the alternative he pleaded to have acquired title by adverse possession, in view of his forcible possession since 1963.

4. The lower Court held the document to be a Will and further held that the deed was not acted upon and therefore dismissed the suit. The lower appellate Court on the other hand held the document to be a deed of family settlement and that it conveyed a valid title in favour of the plaintiff. So far as adverse possession by the defendant is concerned, it held that the defendant's period of possession failed short of the statutory period since the defendant proved his possession only from 1968 and therefore decreed the plaintiff's suit.

5. Mr. Deepak Mishra, learned counsel for the appellant raised two points. First, that the document (Ext. 1) was never acted upon since, according to him, there is no evidence except that of the plaintiff that she accepted the gift and that Rokhia Bibi delivered possession of the property and second, that the recitals in the document (Ext. 1) that the plaintiff accepted the deed and was put in possession of the property in question would not be sufficient to discharge the onus on the plaintiff to prove such acceptance and possession since it is mandatory under the provisions of Sections 150 and 152 of the Mahamedan Law that the same has to be proved by other evidence independent of such recitals in the document and, according to the learned counsel. Section 92 of the Evidence Act would not be a bar to adduce evidence to disprove the case of such acceptance and possession. Incidentally it was argued relying on the finding of the lower Court that Rokhia Bibi had no title to the property in question.

Mr. S. S. Rao, learned counsel for the plaintiff-respondent, on the other hand, supported the judgment of the lower appellate Court.

6. The points raised by Mr. Mishra are intrinsically connected with the conclusion of this Court to follow, that instead of meeting the points so raised by Mr. Mishra, it would be apposite at this stage to first examine the correctness of the finding of the learned lower appeallate Court that Ext. 1, deed, is a family settlement and not a Will as held by the lower Court.

I have no doubt in my mind that the document is a family settlement out and out and the reason for holding the same as such given by the learned lower appellate Court is found to be wholly acceptable to me. We may now proceed to examine the correctness of the approach of the lower appellate Court in this regard.

7. The plaint avers that Ext. 1 is a deed of family settlement. The deed itself mentions it as "GHARA SMANDHA NIRUPNA PATRA'' meaning 'a deed of settlement in respect of the house in question'. The defendant in the writte