A family settlement cannot lay down a line of succession against the principles of Hindu law of inheritance, as it would be an attempt to legislate and alter the legal course of succession.

( 1 ) THIS appeal is about a house No. C-7/67 situate in Mohalla senpura, at Varanasi. A dispute arose between two brothers Surendra Pratap Singh and Brijendra Pratap Singh. Surendra pratap Singh brought a suit for partition claiming a half share in the house against his brother Brijendra Pratap Singh. His case was that Prabhu Nath Singh was the grandfather of the two brothers while Shyambadan was their father. It was alleged that Raj kumari Devi was the daughter of Jai Dev singh brother of Prabhunath Singh and she wanted to give this property to Shyam Badan but Brijendra Pratap played foul and fraudulently got a will executed in his favour. When this fact came to the knowledge of their father, shyam Badan, he intervented. The result was a family settlement between the two brothers Surendra Pratap Singh and brijendra Pratap Singh dated 23-9-1971. As the rights of the parties depend upon of this deed it is necessary to refer to its material terms. It bears a recital that the two brothers are members of a Hindu Joint Family, that the house in dispute was gifted by Smt. Raj Kumari to Brijendra Pratap Singh who thus became its sole owner, that house in dispute was being blended in the other joint properties of the family so that the two brothers have become owner of a half share each as in the other joint properties of the parties. Then follows the crucial term upon the validity of which there has been a hot contest between the parties. The deed recites that on the death of either of the two parties, his male lineal descendant would succeed to his share but in case there is no male lineal descendant, the property would revert to the other brother or his male lineal descendants as the case may be and neither of the parties would have the right to give the property to any person other than to the male lienal descendants of the parties.

( 2 ) IT was the plaint case that the property in dispute was originally acquired from the nucleus of the joint family and was therefore the ancestral property of the parties. The trial Court however negatived this stand of the plaintiff and held that it was in the sole ownership of Brijendra Dubey who had blended it by the settlement in the Joint property of the parties and that each of the parties had a half share therein. However, the suit was decreed by the trial Court on the finding that the term of the deed which provides that on the death of either of the parties, the male lineal descendant would succeed is invalid being against the principles of the Hindu Law of inheritance. This point is crucial because during the pendency of the proceedings in the courts, below both the brothers died. Surendra Pratap Singh died first leaving behind no male lineal descendant and only a widow and daughter who are the respondents in this appeal. Brijendra Pratap Singh died later leaving behind a widow the appellant and also male and female issues. The appellate Court has affirmed the finding of the trial Court that the term in the deed relating to succession is invalid.

( 3 ) I have heard Shri Murlidhar assisted by Shri Tarun Verma for the appellants and shri R. N. Singh assisted by Shri S. N. Singh for the respondents.

( 4 ) THIS appeal was admitted on the following substantial questions of law :- (1) Whether in the facts and circumstances of the case the courts below can themselves divide a registered settlement deed and whether the courts below can hold that part of it is valid and part of it is invalid and illegal ? (2) Whether in the facts and circumstances of the case individual property could be blended in Joint Family property of coparcenery property even though no such joint family property or coparcenery property existed at all ? 3. Whether the case of Tagore v. Tagore (1872) Ind App Supp Vol 47 : 18 WR 359)which is applicable only in the case of gift or will can be extended in respect of the family settlement as well ?

( 5 ) TODAY a statement has been made by shri Murlidhar, counsel for the appellants

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