K. Kannan, J. - (1.) THE following substantial question of arises for consideration in the second appeal: - Whether the 2nd plaintiff, who was not a party to the alleged family settlement (Ex. D2), could be said to have relinquished his right in the suit property by the only fact that the other brothers claimed to themselves the right in the properties through such a family settlement? The suit came to be filed by the plaintiffs contending that they were owners in possession of 3/14th share in the land measuring 1 kanal 8 marlas and the sale effected by the 3rd defendant, who was the plaintiffs' brother, including the plaintiffs' share will not bind them. The plaintiffs were respectively the sisters and brothers of the 3rd defendant, who were all the children of one Munshi Ram. Munshi Ram's two brothers are the defendants 1 and 2. The suit was in relation to the property that belonged to the branch of Munshi Ram. During the pendency of the suit, the 1st plaintiff had sold her own share of the property to the 4th defendant and we are not concerned about her interest. The 3rd plaintiff himself claimed to have purchased the shares of his three sisters along with 3rd defendant. They have allowed themselves to settle their claims and we are not also concerned in this appeal to the 3rd plaintiff's claim in the property as well.
(2.) IN the suit, the principal contest, was entered by the purchaser -the 4th defendant and the contention that she made along with her vendor, the 3rd defendant was that there had been a family settlement which was reduced into writing on 28.04.1980 under the terms of which the 2nd plaintiff had relinquished his share in the suit property and he had been allotted a share in the house in Ravalwala. Some other details of partition had also been set forth as regards the other properties and we are not concerned about the same. The trial Court decreed the suit for the 2nd plaintiff holding that the 2nd plaintiff himself was not a party to the alleged family partition and he could not be bound by any transaction that would result in forsaking his share in the property. The suit of the plaintiffs 1 and 3 had been dismissed. There had been an appeal by the 3rd plaintiff as also by the 4th defendant. Both the appeals were taken together and the court reversed the judgment of the trial Court holding that even if the 2nd plaintiff had not been a party, a family settlement must be given effect to, makes an equitable division of all the properties. The Court held that the 2nd plaintiff himself had come to some benefit of allotment of property in Ravalwala and, therefore, he could not impeach the sale made by the 3rd defendant with reference to the share that was earmarked for him in the alleged family settlement. The only point for consideration in this case is whether the alleged family settlement evidenced through Ex. D2 was proved in so far it purported to relinquish the plaintiffs share in the suit property. The only person, who would be competent to effect the family settlement without the concurrence of other co -parceners is the karta and any such settlement even without the concurrence of junior coparceners would be binding. The said authority does not belong to any other member of the joint family. Consequently, if Munshi Ram himself was not alive, there could not be a family settlement to the exclusion of anyone member that could operate to bind him by the fact that other members have decided to bring about a division in a particular way. Ex. D2 admittedly did not secure the signature of the 2nd plaintiff nor was it even suggested at the trial that he had participated in the family settlement. On the other hand, the contention sought to be taken by the defendants was that the plaintiff had been allotted some other property and he was in enjoyment of the same. If suggestion had been that the 2nd plaintiff was in enjoyment exclusively of some other property which was equivalent to the share which he had in the suit property, then he could be estopped by his conduct from laying a claim also to the suit property having taken a material benefit elsewhere. The evidence regarding some other property which was sought to be elicited in the cross -examination of the plaintiff thus, "It was wrong that there was a compromise between me and my sisters and brothers (and that) I have taken the house and left my share in other property. I am in possession of Ravalwala house since beginning. My other two brothers live in the same house. It is wrong to suggest that I have no connection with this land.......". It could be noticed that there was not even a suggestion made to the 2nd plaintiff that there had been any exclusive allotment of the property in Ravalwala house to him. There was not also any suggestion that the possession of Ravalwala house and allotment to any specific extent equalized his right to a share in the suit property as well. There is a wild suggestion that the plaintiff was making a wrong statement. Nothing is elicited in the cross -examination to bind the 2nd plaintiff with reference to alleged family settlement.
(3.) THE sale made by the 3rd defendant cannot be binding as regards the 2nd plaintiffs share. The evidence brought out that Munshi Ram had 3 sons and 4 daughters, each one of the children had l/7th share. The 2nd plaintiffs entitlement to 1/7th share as decreed by the trial Court is restored and the judgment of the appellate Court is set aside. The second appeal is allowed with costs. Counsel's fee Rs. 10,000/ -.;