Sharma, J. - (1.) THIS appeal has been filed by Mukan Mal, one of the defendants in a suit brought by Mst. Sumer Kanwar, plaintiff respondent originally against Sobhagmal in suit brought by Mst. Sumer Kanwar, plaintiff respondent originally against Sobhagmal in the court of the Civil Judge, Jodhpur. Sobhagmal died pending the suit and Mukanmal and the two tenants of Sobhagmal, namely Harakchand and Chandra Kumar were substituted in his place.
(2.) THE plaintiff's case was that her husband Daulatraj was the brother's son of Sobhagmal and had also been adopted by him as his son. there was an ancestral house situated in Tripolia, Jodhpur belonging to Sobhagmal and his brother Ratanmal. Daulatraj died during the lifetime of Sobhagmal and on the 2nd of October, 1945, there was a family settlement between her on one side and Sobhagmal and his wife Anop-Kanwer on the other. A registered family settlement which is Ex. P. 1 on the record, was executed by the three parties on the 2nd of October. 1945, in accordance with which five portions of a house mentioned in para 2 of the plaint were given over to Sobhagmal and his wife for residence during their lifetime. It was stipulated that the plaintiff would not interfere with the possession of Sobhagmal and his wife of these portions during their lifetime but that they would not be entitled to let those portions out or to transfer them in any other manner, nor would they be entitled to create any encumbrance on these portions. After the death of Sobhagmal and his wife, the plaintiff would be the absolute owner of these portions. As regards the remaining portions of the house, it was stipulated that the plaintiff would be the absolute owner of those portions. It was stipulated that the plaintiff would pay an allowance of Rs. 27/- per mensem to Sobhagmal so long as he and wife were alive, but on the death of the either, the survivor would be paid an allowance of Rs. 20/- only during his or her lifetime, as the case may be. Further, it was agreed that the plaintiff would pay Rs. 500/- to Dashrathmal, to whom this amount was due from Sobhagmal. After the execution of the family settlement, the plaintiff paid Rs. 500/- to Dashrathmal as provided by the said deed and paid Rs. 100/- to Sobhagmal for the construction of a kitchen and up to the 1st of February, 1956, the plaintiff continued to pay Rs. 27/-as allowance to Sobhagmal and his wife in accordance with the terms of the deed. Sobhagmal's wife died in Kartik Smt. 2004 and Sobhagmal let out the four rooms out of the portion allotted to the plaintiff and realized rent therefrom. It was prayed that the possession of the said four rooms which have been given in para 4 of the plaint be awarded to the plaintiff after dispossession of the defendant. It was also prayed that the defendant Sobhagmal be made to render the account of the rent of the said four rooms which he had realized and that he be restrained from creating any charge upon those five portions of the house which had been given to him for residence under the above mentioned deed. Sobhagmal filed his written statement. He admitted that the plaintiff's husband Daulatraj was the son of his brother Ratanmal. He, however, denied that the property in suit was the joint and ancestral property of Sobhagmal and Ratanmal. He pleaded that the entire property was his sole property and that he was in sole possession there of and the plaintiff had no right whatsoever over that property. It was pleaded that no debt was due to Dashrathmal from the defendant, nor did the plaintiff pay any debt on behalf of the defendant to Dashrjathmal. It was further pleaded that nothing was paid to the defendant or his wife as allowance in accordance with the deed (Ex. 1 ). The payment of Rs. 100/- for the construction of kitchen was also denied. It was further pleaded that the said deed was executed by the exercise of undue influence and that the defendant had not understood the contents of the deed. It was also pleaded that the said deed was never acted upon and that there was no consideration for the said deed. It was also alleged that Mukanmal had been adopted as his son by the defendant and he was a necessary party to the suit. As has been stated above, Sobhagmal died during the pendency of the suit and in his place Mukanmal, Harakchand and Chandra Kumar were substituted as his legal representatives. The learned Civil Judge framed a number of issues but as Shri Chandmal appearing on behalf of the appellant did not press any of them excepting those given below other issues may not be taken any notice of in this appeal. The only issues with which I am concerned in this appeal when translated into English, read, as follows - (2) Whether the deed in suit is without consideration. (3) Whether the deed in question had been acted upon, and if so, what is its effect upon the suit. (4) Whether the deed in suit is legally null and void. All these may be taken up together. It was argued by Shri Chandmal that there is no evidence on the record to show that there was any bonafide family dispute between the parties at the time of the execution of the deed. Therefore, the deed does not amount in law to a deed of family settlement. Further, it was argued that there was no other consideration for the deed. It was also argued that the deed had not been acted upon. Learned counsel said that for a valid family settlement, the following ingredients are necessary - (1) Whether there was a doubtful claim and the object of the arrangement was to settle a bonafide dispute; (2) That the settlement had been acted upon; It was argued that no bonafide dispute between the parties has been shown at the time of the execution of the deed and it has not been proved that the deed has been acted upon and therefore, the said deed was of no effect. On behalf of the respondent, it was argued by Shri Hastimal that it is not necessary to prove for the binding nature of a family settlement that any bonafide dispute existed between the parties at the time of the family settlement. It was argued that according to the plaintiff, the house in dispute was the ancestral property of Sobhagmal and his brother. The plaintiff had at least a right of residence and maintenance in that house. By the execution of the deed in question, the plaintiff gave up her right of any one of them to pay Rs. 20/- to the survivor till his or her death. It was argued that the plaintiff also undertook to pay the debt of Rs. 500/- which was due to Dashrathmal from Sobhagmal. The debt of Rs. 500/-was paid and there is evidence to show that if not the entire amount, a party of the monthly allowance was paid to Sobhagmal and that Rs. 100/- were also paid for the construction of a kitchen which should also be credited towards the monthly allowance. It was argued that under the circumstances there was sufficient consideration for the family settlement and it was arrived at to preserve the honour and peace of the family and to avoid future disputes. All this consideration was quite enough and it was not necessary to prove specifically that any bonafide dispute existed between the parties prior to or at the the time of the execution of the deed. I have considered the arguments of both the learned counsel. The deed (Ex. 1) was solemnly executed by the plaintiff Sumer Kanwar on any side and Sobhagmal and his wife on the other and it was duly got registered. A plea was raised in the lower court that it was executed on account of undue influence and that the defendant had not understood the contents of the deed. This plea had been negatived by the learned lower court and its finding has not been questioned in this appeal. All that Mr. Chandmal Lodha, on behalf of the appellant, has argued is that there is no evidence to show that there existed any dispute between Sobhagmal on one side and Mst. Sumer Kanwar on the other at the time of the execution of the deed. It is necessary to show that such a dispute existed at the time of the family settlement in order to prove that there was consideration for the deed. If there is no other consideration for the family settlement, the existence of the bonafide dispute is considered to be a sufficient consideration but as has been held in certain authorities which will be noticed presently, it is not necessary even in those cases where no other consideration has passed that the bonafide dispute actually existed prior to or at the time of the family settlement It has been held in the case of Pokhar Singh vs. Mt. Dulari Kunwar (1), that - "for a family arrangement to be good it is not necessary that there should be a family dispute which has to be settled or composed. A family arrangement to be good need not necessadly be a "compromise of doubtful rights. " Ruling in the case of Williams vs. Williams (2) was relied on by the learned Judges of the Allahabad High Court, who decided that case. Mukherji, J. who was on of the Judges who decided that case, observed as follows - Mr. Iqbal Ahmad argued that there could be no valid family arrangement without there being in existence a dispute among the members of the family. The counsel for the defendants' not being therefore, of the same opinion, it is necessary for the Court to decide whether there could or could not be a family arrangement binding on the parties to it, without there being in existence a dispute as regards the property. On this point the law in India has been borrowed from England and it has not been disputed that the principles of English law would apply to India Lord Halsbury in his Laws of England (Vol. 14, P. 540) defines a family arrangement as - "a transaction between members of the same family which is for the benefit of the, family generally, as, for example, one which tends to the preservation of the family property, to the peace or security of the family and the avoidance of family disputes and litigation or to the saving of the honour of the family," It will be noticed that avoidance of family disputes is only one of the many grounds which go to validate a family arrangement. A family arrangement to be good need not, necessarily be a "compromise of doubtful rights" In Williams vs. Williams (1) at p. 331, it was definitely stated that for a family arrangement to be good it was not necessary that there should be a family dipute which had to be settled or composed. " The other Judge, namely, Bannet J. , after quoting the extract from the Halsbury's Laws of England mentioned above, observed as follows: - We consider that it is not necessary for the validity of a family settlement that there should have been a dispute existing between the parties at the time of the family settlement. " In a latter case, Mst. Dasodin vs. Gaya Prasad Minor through Sadhoram (3) a Division Bench of the same High Court held the same view. It was held that - "the existence of a family dispute is not essential to the validity of a family arrangement. Nor is the existence of a doubtful claim based on the allegation of an antecedent title essentia) for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property, But there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety. " A Division Bench of Orissa High Court in Sundar Sahu Gountia vs. Ghamra Sahu Gountia (4) took the same view and held as follows: - "to constitute a valid family arrangement (i) the transaction should be one which is for the family generally, (ii) The; consideration for the arrangement may be preservation of the family property, preservation of the peace and honour of the family, or the avoidance of litigation. (iii) It is not essential that there should be a doubtful claim, or a disputed right to be compromised. If there is one, the settlement may be upheld if it is founded on a reciprocal 'give and take' and there is mutuality between the parties, in the one surrendering his right and in the other forbearing to sue. In such cases, the Court will not too nicely scrutinise the adequacy of the consideration moving from one party to the other (xi) In any case, if such an arrangement has been acted upon, the courts will give effect to it on the ground of estoppel or limitation and the like. " Applying the above principles to the facts of the present case, the house in dispute was the ancestral and joint family property of Sobhagmal and his brother. The allegation which was made by Sobhagmal in his written statement that the property was his separate property, remained only an allegation without any proof. Mst. Sumer Kanwer therefore had at least a right of residence in that house and of maintenance from Sobhagmal. If both Sobhagmal and Shiner Kanwar with a view to preservation of the family property and harmony of the family, entered into the arrangement in accordance with which Mst. Sumer Kanwar agreed to pay a certain debt of Sobhagmal and agreed to pay a sum of Rs. 27/- per mensem as allowance to Sobhagmal and his wife during the lifetime of both and of Rs. 20/- to the survivor after the death of the husband or the wife instead of claiming maintenance allowance from Sobhagmal and was given a certain portion of the family property in consideration of her agreement to pay Sobhagmal's debt and to pay monthly allowance to Sobhagmal and his wife, there was perfectly a valid consideration for the giving of that portion to Mst. Sumer Kanwar as her absolute property which has been given to her under the deed of agreement and for agreement that the remaining portion would go to he|r on the death of Sobhagmal and his wife. It has been held by the lower court and has not been disputed by Shri Chandmal Lodha that a sum of Rs. 500/- was paid by Sumer Kanwer to Dashrathmal, the creditor of Sobhagmal, on account of the debt owed to him by Sobhagmal. Dashrathgmal himself came into the witness box and proved his debt and the payment thereof by Sumer Kanwer. It has also been held by lower court and not questioned by Shri Chandmal, that at least for certain months, monthly allowance of Rs. 27/- was paid to Sobhagmal and the sum of Rs. 100/-towards that allowance was paid by Sumer Kanwer to Sobhagmal for the consideration of a kitchen. There was, thereof, tangible consideration for this family arrangement and it was certainly in the interest of the preservation of harmony in the family and the preservation of the property. Even if no dispute existed at the time when the family arrangement was entered into,| disputes could have arisen if Mst. Sumer Kanwer had not been allowed to reside in the house and were not given any maintenance allowance. The family arrangement in question not only put an end to such a discord in future but also provided Sobhagmal with funds for the payment of his debt and provided him with means of livelihood in future and saved him from the liability of paying any maintenance allowance to Mst. Sumer Kanwer. Sobhagmal was perfectly entitled to transfer property and nobody could question it. The settlement has been acted upon and thereof, I do not think that there was any answer to the suit of the plaintiff. The appeal has no force and it is dismissed with costs to the contesting respondent. . ;