SUBBA RAO, - (1.) THE following Judgment of the court was delivered by:
(2.) THIS appeal mainly raises the question of the factum and validity of a family arrangement alleged to have been effected between the members of a joint Hindu family. The following genealogy will be useful to appreciate the contentions of the parties: (See genealogy on next page) Peda Venkaiah, Venkateswara Rao, Pulliah the son of Venkatramaiah by his first wife, and Venkatramaiah died in 1928, 1933, 1936 and 1952 respectively. Peda Venkiah had no ancestral property: all his properties were his self-acquisitions. His eldest son, Venkatramaiah, was not an intelligent man, though he was good enough to look after the cultivation of the lands. His younger son, Narasimha, was an able man in whom the father had confidence and though, he was the younger son, he was helping his father in the management of the family affairs and indeed even during his father's lifetime many properties were purchased in his name. After the death of the father, Narasimha was in charge of the management of the money lending business and the business at Eluru and was also looking after the court affairs. During the course of his management large extent of properties were purchased in his name. After the death of Venkatramaiah in 1952, disputes arose between Narasimha and Venkatramaiah's son, Pullaiah, which led to the filing of O. S. No. 69 of 1952 by Pullaiah in the court of the District Judge, Eluru, against Narasimha and his sons and others for partition of the joint family property by metes and bounds. He impleaded Narasimha and his sons as defendants 1 to 4 and his mother, as defendant 5. The other defendants were persons who had joint interest in some of the family properties. The suit came up before the Subordinate Judge, Eluru, and it was renumbered as O. S. No. 86 of 1954. Defendants 1 to 4 mainly contested the suit on the ground that under the family arrangement the 1st defendant was given three shares in the joint family properties and Venkatramaiah was given two shares therein and that all the properties standing in the name of the 1st defendant were his self-acquisitions. The learned Subordinate Judge, on a consideration of the entire oral and documentary evidence, held that the properties standing in the name of the 1st defendant were also joint family properties and that Ex. B-1, dated 4/11/1939, embodied a family arrangement effected between Venkatramaiah and Narasimha whereunder the 1st defendant's branch would be entitled to 3 shares and the branch of Venkatramaiah would be entitled to 2 shares in all the joint family properties and that the said family arrangement was valid and binding on the plaintiff. In the result he gave a decree to the plaintiff for two-fifths of the joint family properties. It is not necessary to notice the other findings given by the learned Subordinate 1838 JUDGEMENT_1836_AIR(SC)_1966Image1.jpg Judge, as nothing turns upon them in this appeal. On appeal, a division bench of the Andhra Pradesh High court confirmed the view of the learned Subordinate Judge both on the factual and the validity of the family arrangement Hence the present appeal. Mr. A. K. Sen, learned counsellor the appellants, contended that while in the written-statement the 1st defendant pleaded a family arrangement alleged to have been entered into between him and the plaintiff's (1st appellant herein) guardian, after the death of Venkatramaiah both the courts went wrong in holding that there was a family arrangement between Venkatramaiah and Narasimha in 1939 on the basis of Ex. B-1. He further contended that Ex. B-1 could not in law sustain the family arrangement as there were no conflicting claims between the parties which could have been resolved by a family arrangement.
(3.) THE first contention turns upon the pleadings and the issues framed thereon. In paragraphs 4, 5, 6 and 7 of the written statement, the 1st defendants stated how his father before his death gave directions that when the family properties were divided between him and Venkatramaiah such additional property as might be fixed by their mother should be given to him, how after his father's death Venkatramaiah requested him to manage the family properties as he was doing before and promised that he would give him such extra property, how in 1922, when he fell ill, ho insisted, upon a namely and for giving him his extra proposed Venkatramaiah again requested him to disrupt the family but to continese management as before on the promise that when the partition was effected his branch would take only 2 shares and the 1st defendant's branch would take 3 shares of the joint family properties, how thereafter be continued to manage the properties as he was doing before and improved them how in 1931 Venkatramaiah asked him be joint at least for 6 more years and have the aforesaid shares in toe proper when they entered into a partition the after and how in 19S9 the said oral arrangement to divide the properties in the said shares was embodied in a document. After the said recitals, in paragraph 9, he proceeded to state: "It is also on the basis of this agreement, which is also a family arrangement that the 1st defendant continued to work before and improved the family propeperty. But for this family arrangement, he would have got the family properties divided long ago and would have claimed the property acquired by him in his own name as his self-acquisition. It is because of this family arrangement and agreement that the 1st defendant continued to be joint and work hard and agreed that the property acquired by him might be divided at the partition." In addition to the said family arrangement, he pleaded another family arrangement after the death of Venkatramaiah between himself and the plaintiff represented by his mother as guardian. That arrangement is stated in Para. 13 of the written-statement. After stating all the necessary facts that led to that arrangement, in paragraph 14 he averred: "THE said agreement is binding on the plaintiff and his mother. It is a family arrangement and a bona fide settlement of disputes, entered into in the best interests of the minor plaintiff and his mother. THE plaintiff's mother as guardian of the plaintiff and with the advice of the family wellwishers entered into it. Such an arrangement and sertlement avoids prolonged and expensive litigation. That settlement and arrangement is binding on the plaintiff and his mother." 1839 In the plaint the plaintiff completely ignored the said arrangement. On the pleadings the following two issues, among others, were framed: Issue 3. Whether the agreement and the family arrangement with the father of the plaintiff set up by the 1st defendant is true, valid and binding on the plaintiff. Issue 4. Whether the family arrangement set up by the 1st defendant with the mother of the plaintiff after his father's death is true, valid and binding on plaintiff. On issue 3, the learned Subordinate Judge held that the family arrangement entered into between Venkatramaiah and Narasimha was true and valid, and on issue 4, i.e., in regard to the family arrangement alleged to nave been entered into after the death of Venkatramaiah, he held against defendants 1 to 4. On appeal, the High court accepted the finding of the learned Subordinate judge on issue 3, i.e., the factum and validity of the family arrangement entered into between Venkatramaiah and Narasimha. No argument was raised in the High court by the 1st defendant to support the family arrangement under issue 4. It is, therefore, not correct to say that the courts found a family arrangement different from that pleaded by the 1st defendant. Out of the two alternative family arrangements pleaded, they accepted the first, i.e., that entered into between Venkatramaiah and Narasimha under Ex. B-1. The next question is whether Ex. B-l is valid as a family arrangement. Before we advert to the circumstances under which the arrangement embodied in Ex. B-1 came to be brought about, we shall briefly notice the law of the family arrangements. ;