SHELAT - (1.) TWO questions arise in this appeal. The first is whether the transaction evidenced by Ex. 1, dated 20/03/1915 was a family arrangement so as to confer on the appellant and his father, Nanhku Prasad, since deceased, title to a half share in the house in dispute. The second is that even if it was so, whether such title became extinguished as a result of adverse possession for the statutory period by Baijnath, the deceased husband of respondent 1.
(2.) THE parties are near relations. THE following genealogy explains the relationship amongst them: JUDGEMENT_28_2_1971Image1.jpg There is no dispute that Amar Singh purchased from his own funds under a registered deed, dated January 20, 1898, the land on which the house in dispute stands. His son, Nanhku, the deceased father of the present appellant, was taken in adoption sometime prior to 20/03/1915 by Ramji Singh and his wife Patreja Kuer as they had no issue, whereupon Nanhku ceased to have any interest in the properties owned by Amar Singh and his branch. In 1933. Nanhku and the present appellant, than a minor, filed Suit No. 33 of 1933 against Sonadhari, Tarkeshwar, Baijnath and Reshmi Kuer (the widow of Amar Singh, wrongly described by the High Court as the wife of Rajkumar in the genealogy set out in its judgment) in respect of certain properties which had nothing to do with the house in dispute. The written statement filed in that suit was that Nanhku had been paid the price of his share in the house in dispute and that the entire house, consequently, belonged to and was since then in the exclusive possession of the defendants. The suit went upto the High Court when in 1941 a compromise application was filed by the parties settling that suit. But, as the suit had nothing as aforesaid to do with the house in dispute nothing was said about the allegation that Nanhku had been paid off in respect of his interest in that house. In 1949 Nanhku and the appellant filed the instant suit for a declaration of their half share in the house in dispute. In answer to the suit the respondents raised three defences: (1) that Nanhku and the appellant derived no interest under Ex. 1, (2) that assuming that they derived such interest it was relinquished by them on being paid the price thereof, and (3) that in any event they lost their interest by reason of adverse possession by respondents. The Trial Court rejected all the three defences raised by the respondents and decreed the suit, holding that Nanhku had acquired one-half share in the said house under Ex.1. Against that decree two appeals were filed in the High Court one by respondent 1 and the other by some of the other respondents. These appeals were heard first by a learned Single Judge of the High Court Before the learned Single Judge the finding of the Trial Court that Nanhku and the present appellant had not relinquished their interest in the house on their being paid the price thereof was not disputed. The only questions agitated before the learned Single Judge, therefore, were whether Nanhku had a half share, that is to say, whether he derived his title to the half share under and by virtue of Ex. 1, and if so, whether he lost it as a result of adverse possession by the respondents.
(3.) IN inspect of the first question, the parties urged two conflicting pleas. Nanhku and the appellant contended that Ex. 1 was a family arrangement under which he got half share in the house and that that family arrangement was valid and binding on the parties. The respondents, on the other hand, contended that Ex. 1 was only a Ladavi deed, that is, a deed of relinquishment. The argument on behalf of Nanhku and the appellant was that there were outstanding disputes between the different branches of the family of Rajkumar, and those disputes were ultimately settled at the instance of and with the aid of certain family friends resulting in Ex. 1 by way of a family arrangement. Therefore, even if Nanhku and the appellant were not able to show their anterior title to the house they were entitled under Ex. 1 to a half share therein. The learned Single Judge accepted the contention raised by Nanhku and the appellant. His reasoning in this connection was that although the land on which the suit house stood was purchased by Amar Singh out of his own funds, it was purchased in the furzi name of Lalji but there was no evidence that Lalji ever admitted to be the furzidar of Amar Singh. Consequently, though Nanhku, by his adoption, lost all interest in the properties of Amar Singh, yet the fact that in Ex 1 Amar Singh acknowledged Nanhku having a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a future dispute and that it was such an apprehended dispute which Ex,1 while dealing with the house, settler. The learned Single Judge added that even assuming that there was no existing or apprehended dispute and the settlement was made out of consideration for the peace of the family or preservation of its properties, the settlement would have to be regarded as a family arrangement. Regarding the plea of adverse possession, he upheld the finding of the Trial Court that Nanhku and the appellant had established their acts of possession during the statutory period, and that consequently, the continuity and exclusiveness of the respondents' adverse possession had been disrupted. On these findings, he dismissed the appeals and confirmed the decree passed by the Trial Court. Respondent 1 thereupon filed a Letters Patent appeal which was heard by a Division Bench of the High Court. The same two questions were reagitated, namely, as to the nature of Ex. 1, and as to the adverse possession. On the first question, the reasoning adopted by the Division Bench was on the following lines: (1) that the executants of Ex. 1 formed three conflicting groups, namely. (a) Suba, Faujdar and Balkeshwar. constituting one group of members of Lalji's branch, being executants 1 to 3; (b)Raghunandan and his son, Kamaldhari, being executants 4 and 5. and constituting Raghunandan's branch, and (c) Amar Singh for himself and as the guardian of Baijnath, then a minor, Sonadhari for himself and as guardian of his minor son, Tarkeshwar, and Nanhku who had, as earlier stated, gone to the line of Ramji on his adoption being executants 6, 7 and 8; (2) that the disputes, in settlement of which Ex. 1 was executed by these three groups, were as its recitals show: (a) conflicting claims made by the said three sets of executants as to whether they were joint or separate in status, the claim of executants 1 to 3 being that all the members of Rajkumar's family were still members of an undivided Hindu family, and that therefore, although the properties stood in the names of and were in possession of individual members, they continued to be joint family properties including properties standing in the names of female members, namely, Resmi and Patreja; (b) the allegations by executants 4 and 5 (Raghunandan's branch) that all the four branches of Rajkumar's four sons were separate and yet claiming share in the properties standing in the names of members of Lalji's branch, and (c) the claim by executants 6, 7 and 8 (Amar Singh Sonadhari and Nanhku by now in the line at Ramji) that the parties were separate in status, and therefore, the properties in the name of the two said females belonged exclusively to them and the members of the other branches had no interest whatsoever in them; (3) that the Trial Court and the learned Single Judge were in error in holding that what Ex. 1 did was to evidence relinquishment by the rest of the members of the family of their claim in properties standing in the name of or in possession of particular members and thereby acknowledging their anterior title in such properties. In fact Nanhku had no such anterior title, nor could he in law have any such title in the house in dispute in view of his having got out of Amar Singh's branch as a result of his adoption by Ramji; " (4) that there was no subsisting or apprehended dispute between Amar Singh and his family on the one hand, and Nanhku on the other, the latter not having made any claim for a share in the house in dispute, and that therefore, there was no question of preservation of peace or family property, there being nothing on record to show that Nanhku had held out any threat to the family peace or property: therefore, there was a total want of mutuality as in consideration of Nanhku getting a half share, Amar Singh got nothing in return and cases of the type of Williams v. Williams, (1867) 2 Ch A 294 had no application; (5) that the recitals in Ex. 1 showed that the only dispute which prevailed at the time was "branchwise" and in that dispute Nanhku did not set up any contest against Amar Singh and his branch and indeed, both of them acted in concert both claiming that the members of Rajkumar's family were separate and the properties standing in the names of Reshmi and Patreja were their exclusive properties; (6) that acknowledgment of exclusive title of Amar Singh and Sonadhari (executants 6 and 7) to certain properties, and likewise acknowledgment of exclusive title of Nanhku (executant No. 8) to certain other properties set out in paras 3 and 4 of Ex. 1 were not by way of settlement of any existing or apprehended dispute between them, and therefore, that part of Ex. 1 could not be regarded as providing any consideration for conferring the half share in the disputed house on Nanhku. On this reasoning the Division Bench declined to treat Ex. 1 as a family arrangement. The conclusion of the Bench clearly signified that it had relied on two fundamental premises: (1) that there were only three sets of executants, the third set consisting of executants 6, 7 and 8, and (2) that Amar Singh and Nanhku had acted in concert as there were no conflicting claims, by and between them. ;