RAMGOPAL Vs. TULSHI RAM

JUDGEMENT

(1.) This case has been referred to this Fall Bench for determination of certain questions relating to the law governing "family arrangements". On the death of one Nathua in the first quarter of the year 1924, an application for mutation was made by Ramgopal, the present plaintiff-appellant, a first cousin of Nathua. On 31 March 1924 objections were filed by Tulshi Ram, Munshi Lal and Duli Chand, grandsons of Ramgopal's great-uncles. Their objection took the form of an allegation that Ramgopal's father had been adopted into another branch of the family and Ramgopal had, therefore, lost all right to succeed to Nathua's property. On 24 April 1924 Ramgopal and the three objectors, by a joint application, stated that they had arrived at a compromise and asked for mutation to be made in Ramgopal's name as to 1/3rd, in the names of Tulshi Ram and Munshi Lal as to 1/3rd, and in the name of Duli Chand as to the remaining 1/3rd, and on 3 May 1924, order was made accordingly. On 6 August 1921 Ramgopal filed a suit against Tulshi Ram, Munshi Lal and Duli Chand, defendants 1, 2 and 3 respectively, claiming the whole property. Duli Chand did not contest the suit but supported the plaintiff's claim. Munshi Lal, defendant 2, also put in no appearance, but apparently left his brother Tulshi Ram, defendant 1, to contest the suit. Ramgopal's father's adoption was again pleaded but was held by both the lower Courts not to have been established. Both Courts, however, held that there had been a family arrangement which was binding, and, therefore, while a decree was passed in favour of the plaintiff as regards the 1/3 of Duli Chand, the suit was dismissed as regards the 1/8 which had been allotted to Tulshi Ram and Munshi Lal. The appeal to this Court came before a single Judge who referred it to a Division Bench and that Bench has referred to this Full Bench the three following questions: (1) Whether in India, where the Transfer of Property Act is in force, a family arrangement dealing with immovable property of the value of Rs. 100 and upwards, can be effected by an oral contract? (2) If the oral contract be followed by a joint petition in a mutation Court, containing the terms of the settlement, in the shape of a request to the Court to record the names of the parties in a particular manner, whether that petition, being an unregistered document, may be treated as substantive evidence of the terms of the settlement? (3) If mutation of names takes place in terms of the joint petition and possession is taken under it, whether before the possession of the defendant has lasted for the space of 12 years, the rightful owner is precluded from claiming the property to which he is entitled, it being assumed that no question of estoppel by conduct arises against him?

(2.) (This third question we have re-drafted in the form set out by us later at the place where we answer it).

(3.) The answer to the first question: Whether in India, where the Transfer of Property Act is in force, a family arrangement dealing with immovable property of the value of Rs. 100 and upwards, can be effected by an oral contract? depends upon whether a family arrangement may be said to constitute a transfer of property within the meaning of the Transfer of Property Act. Section 9, T.P. Act, lays down that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The only form of transfer dealt with in the Transfer of Property Act, within the limits of which it can be suggested that a family arrangement comes, is transfer by exchange. Section 118, T.P. Act, says: When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing nor both things being money only, the transaction is called an exchange.