S.B.Sinha, J. - (1.) DEFENDANT No. 1 in the suit is the appellant herein. The parties hereto were admittedly co-owners of the suit property. The relationship between the parties shall appear from the following genealogical table: JUDGEMENT_273_TLPRE0_2007Image1.jpg
(2.) A suit for partition was filed by the plaintiffs claiming one-fourth share in the suit property. It is not in dispute that on or about 30.3.1973, a purported family settlement was arrived at by the parties. One of the defendants, however, was not a signatory thereto. In the said purported family settlement, it was stated: We each of us are entitled to share in the family property. As that property is a small areca garden and as there are no sites near by to construct a separate houses, that property cannot be divided. Hence as owelty No. 1 of us is liable to pay to No. 2 and 4 of us Rs. 15,000/- each. That amount is to be paid in 15 yearly instalments of Rs. 1000/- each. On payment of last instalment 2 and 4 of us release their rights in favour of No. 1 of us at his costs. We No. 1, 2 and 4 of us have agreed for this. The Ist instalment is to begin with the end of March 1973 and end with the period of 15 years at the end of March 1987.The marriage of Nos. 2 and 4 of us is to be performed by No. 1 of us in the family House. If the instalments cannot be paid due to the marriage in that year = the amount is to be paid in that year and the balance is to be paid in the subsequent year. Accordingly if the entire amount is not paid as stipulated the same is to be paid by the end of March 1990 by number 1 of us and get a release deed executed from No. 2 and 4 of us at the costs of No. 1 of us. No. 2 and 4 of us have to construct separate houses by the end of May 1976 and reside there. As there are no sufficient movable and gold jewels in the family house No. 2 and 4 have no separate share in it. No. 1 of us is liable to pay the family dues if any and bear the expenses of the viniyogas of Gods and devils. Towards the maintenance of our mother each of us is liable to pay 2 muras of rice and Rs. 25/- every year and obtain receipts and her obsequies is to be performed by No. 1, 2, 3 and 4 of us in equal shares. No. 2 and 4 are not liable for the family debts. The share of No. 3 of us is retained by No. 1 of us he is liable to deliver the same when he demands, we Nos. 1, 2 and 4 of us agreed for the terms in the presence of the grahastas with our full consent and executed this agreement we are liable to abide by all the conditions of this agreement. If any of us incurs loss etc. by non performing as per the agreement, the person who had not performed his part is liable to pay the loss etc. and that person is entitled to recover the amounts. Accordingly we have entered into this agreement. Allegedly, the said family settlement had not been acted upon in so far as the appellant herein did not pay a sum of Rs. 15,000/- to the respondents herein. In their complaint, the appellant stated: VI. The plaintiffs further submit that the alleged agreement dt. 30.03.1973 has never come into force and it has never been acted upon. The 1st plaintiff has never been paid any amount under the said agreement, the averments made in the notice dated 05.05.1988 and the reply dated 12.05.1988 in this regard are palpably false, defendants 1 to 4 cannot take shelter under the said agreement and deny the plaintiffs their lawful share in the plaint properties. Further, the said document is also not valid since the 6th and the 9th defendants are not parties to it. The averments made in the plaint to that effect had not been denied or disputed. Appellant, however, raised a contention that by reason thereof as the parties have arrived at a family settlement and a part of it have been acted upon; the plaintiffs/respondents were estopped from filing the suit. Learned trial Judge having regard to the rival contentions raised by the parties, inter-alia framed the following issue: 3. Whether defendants 1 to 3 prove that plaintiff-1 and defendant-6 were paid money in respect of their share as per agreement-dated 30.3.1973?
(3.) THE first part of the said issue, namely whether the appellant herein had paid the said sum of Rs. 5,000/- in favour of plaintiff No. 1, was answered in the negative. Despite the said finding, in view of the said purported family settlement dated 30.3.1973, the learned Trial Judge decreed the suit. On an appeal having been preferred by the said decree by the respondent herein, the High Court by reason of the impugned judgment reversed the same inter-alia holding: (i) THE said deed of family settlement dated 30.3.1973 not being registered, was inadmissible in law. (2) THE family settlement could not have been acted upon as all the parties are not signatories thereto. It was opined: 11. THE view of the court below that there was a partition and the plaintiff is governed by the same and severance of status cannot be accepted at all. Even if there be severance of status, there is no partition in the eye of law. THErefore, a preliminary decree has to be passed declaring that the plaintiff is entitled to one fourth share. 12. It is open to the plaintiff to move to (sic) final decree for division and separate possession. It is open to the 1st Defendant-Respondent to put forward all his claim regarding his spending moneys on the family in the minutes of the enquiry to be conducted by the enquiry authority who shall consider all his objections. Mr. S.N. Bhat, learned Counsel appearing on behalf of the appellant in support of the appeal submitted that the High Court committed a manifest error in arriving at the aforementioned finding inasmuch as a deed of family settlement is not required to be compulsorily registered under Section 17 of the Registration Act. Learned Counsel contended that the said deed of family settlement has wrongly been held to be ineffective only because all parties did not sign thereto. The learned Counsel appearing on behalf of the respondent, on the other hand, supported the impugned judgment.;