D. Govindan Nair vs K. Kallyani Amma

S.S. Satheesachandran, J.—The appeal is directed against the judgment dated 26.9.1992 in O.S. No. 156 of 1989 of the Sub Court, Kozhikode. Suit was one for partition in which a preliminary decree was passed allotting /32 rd share in the plaint property in favour of the two plaintiffs with mesne profits, past and future, reserving the quantum thereof to be determined in the final decree proceedings. Sole defendant in the suit, aggrieved by the decree so passed, has preferred this appeal.

By passage of time, both the plaintiffs and also the defendant had passed away, and their legal representatives have been substituted in the appeal.

Appellant/defendant and the plaintiffs are the children of one Raman Nair. The plaint schedule property, consisting of three items, belonged to the above said Raman Nair and he had settled the properties jointly in favour of his children vide Ext. A1 deed. While continuing in joint possession and enjoyment of the properties, the plaintiffs and the defendant, all of them together, entered into an agreement Ext. A2 styling it as a ''Welfare Arrangement''. The case of the plaintiffs for partition and separate allotment of their shares in the plaint properties, which are covered by Ext. A2 deed, is set up on the basis that Ext. A2 was intended to be acted upon only for sharing the profits over separate items and there was no division of the properties. On the other hand, the defendant, their brother, resisted the claim for partition contending that Ext. A2 is a family arrangement effected by the sharers, by which, there was division and separate allotment of the properties in favour of the parties. The learned Sub Judge, negativing the challenge of the defendant held that unity and jointness over the properties remained intact in spite of Ext. A2 agreement providing for sharing the profits over separate items, and the parties continue as co-owners of the plaint properties. In that view of the matter, the claim for partition, allotment of the shares and mesne profits, was upheld and a preliminary decree was passed in favour of the plaintiffs.

After hearing the counsel on both sides in extenso, we find, in the given facts of the case, the solitary question that calls for determination is whether Ext. A2 agreement is a family arrangement effected by the parties for division of the plaint properties among themselves or not. The intention of the parties has to be gathered primarily from the terms in the document to examine whether the deed (A2) had been executed as a settlement between the members of the family of their disputes, by which each party takes a share of the family property by virtue of the independent title, which is, to that extent and by way of compromise, admitted by the other parties.

First and foremost, it is noticed that out of the properties settled under Ext. A1 deed by the father in favour of the parties, plaintiffs and defendant, excluding the buildings and premises comprised in Item No. 1 (having an extent of 55 cents of property), retaining its unity, possession and enjoyment with all the parties, a settlement in accordance with the terms specified has been made under Ext. A2 deed. The reason spelt out for effecting such a settlement under Ext. A2 deed is stated as the need for enabling the parties to take the income separately from the properties for their welfare, improvement and advancement, and to avoid bitterness among themselves. Item numbers 4 to 6 described under the deed had been settled in favour of the first party, the defendant, and item numbers 1 to 3 in favour of the plaintiffs, two sisters, jointly with a direction to have separate possession and enjoyment and collection of profits thereof by the respective parties. It is further made clear that the additional structure styled as "kizhekkedam" put up by the defendant as adjoining to a School building in Item Nos. 3 and 4 does not form part of the deed and, over that structure, the defendant is entitled to collect the rent thereof. So far as another structure adjoining to the School building styled as "Padinjaredam", it is stated the plaintiffs, two sisters, have the right to collect rent. Over another shop room, the rent of which is stated to be collected by the father of the parties, it is agreed upon that it shall continue to be so till the father is alive, and thereafter to be jointly collected by all the parties. A restrictive covenant interdicting the parties from alienating, dismantling or removing the structures otherwise than on agreement by all the parties together also form part of the deed. It is further stated that the deed has been executed for sharing of profits by improving such land by having separate possession. The binding nature of the deed on the parties and also their successors in interest is also stated by the parties agreeing that the deed in force has to remain in force for ever.

A covenant has also been entered by the parties under the deed to bind their successors to the terms of the deed.

Ext. A2 deed containing the terms stipulated as above is only a settlement effected by the parties for taking income from the properties by having separate possession of the items, and under the deed there was no division, and the jointness and unity of the property with right over them by all the parties as co-owners continued intact irrespective of that deed, is the case of the plaintiffs for partition and separate allotment of their shares. The defendant, their brother, refuting the claim, contended that a partition of the properties, which had been settled in their favour jointly by their father, subject to the reservations made over the buildings and premises in item No. 1 and special rights conferred over two buildings attached to a School, as indicated in the document, was effected dividing the properties among the sharers. Having regard to the terms of Ext. A2 we do not find any merit in the case of the plaintiffs that the arrangement made was intended only for sharing of profits by having separate possession of the properties. Where properties jointly enjoyed by the parties are settled among themselves and arrangement is made to have enjoyment separately to share profits of the properties specified in their favour, it is indicative that the parties intended a division and allotment made to have exclusive possession and enjoyment of property for its improvement and also to collect the income thereof without the liability to account to any other person. The restrictive covenants imposed under the deed prohibiting the parties from alienating or dismantling the structures unless there is mutual consent by the parties cannot be of any merit or value when the parties have unequivocally agreed that the terms settled by them to have separate possession and sharing of profits over the items specified is binding on their successors in interest as well and the deed has to be effective for ever. The most prominent part of a deed of partition is the assignment of separate possession of the property to the different co-owners. Under Ext. A2, it is seen, specific assignments have been made in favour of the sharers over the items of the properties described, item numbers 1 to 3 in favour of the defendant and item numbers 4 to 6 with the plaintiffs jointly. Reservations made as to retaining the unity and jointness over the buildings and premises in item No. 1, restrictive covenants with respect to alienation/dismantling of building etc. and also that the assignment of specific items to the parties is for taking profit of the items exclusively improving such property and thus to avoid bitterness in future among them, are not circumstances indicating that there was no division but only an arrangement for sharing profits without disturbing the unity and jointness of the property with the co-owners. In fact, a division by way of partition is intended among the sharers to enjoy the properties separately to the exclusion of others, for its improvement, collecting profits and further to maintain good and healthy relationship between the parties avoiding bitterness over disputes over the enjoyment of the property. In fact, a family arrangement effecting partition, whereby, each member of the family takes share in the family property can be effected orally as well. If such family arrangement is entered into bona fide to maintain peace or bring about harmony in the family and terms thereof are fair, taking into consideration the circumstances of the case, every effort must be made by the court to recognize and sustain it. (See K.V. Narayanan Vs. K.V. Ranganandhan and Others, ). It may also be worthwhile to take note of the decision rendered by the apex court in Kale and Others Vs. Deputy Director of Consolidation and Others, as to the essential requirements to have a binding effect of a family settlement, in that the settlement effected must be bona fide one to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family and the said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.

Other than alleging that Ext. A1 is intended only for sharing the profits and a property dealt with thereunder remained joint and undivided, the only case pleaded by the plaintiffs to avoid the settlement effected is that the income derived from the properties allotted to them is comparatively low when compared with that obtained by the defendant from the properties allotted to him. That, of course, has no significance where the properties covered by the deed were settled in favour of the parties on mutual consent. There is nothing to indicate that the settlement effected by the parties under Ext. A1 was not bona fide and the allotment made to the defendant and the plaintiffs, both of them jointly, is inequitable. The evidence of PW.1, the husband of one of the two plaintiffs, of whom is not made clear, who had been examined on behalf of the plaintiffs, would indicate that pursuant to Ext. A2 in 1971 a registered deed was entered in respect of a shop room comprised item No. 1, one among the properties allotted in favour of the plaintiffs in Ext. A2, in favour of the defendant and he is operating a welding workshop in that shop room. Though the above witness would try to explain away the consequences flowing from the registered deed stating that it was executed without the plaintiffs knowing the contents thereof and the transaction stated therein came to the notice of the plaintiffs only after the institution of the suit it has to be taken note that such a deed remained unimpeached even in the present suit. It has also come out from the evidence of PW.1 that over one of the items allotted in favour of the plaintiffs, they had obtained a purchase certificate from the land tribunal to the exclusion of the defendant. Exts. A1 and A2 documents would show that the father of the plaintiffs had obtained right over the properties under a lease. Though PW.1 would state that the purchase certificate obtained over one of the items by the plaintiffs was with the consent of the defendant - their brother, but, with no material to hold so, it is a tell-tale circumstance that ever since Ext. A2 agreement the parties had dealt with the properties accepting that a division had been effected. The learned Sub Judge, without adverting to any of the above aspects and in fact without examining the terms of Ext. A1 deed, but only making a reference to them, has formed a conclusion that the plaint schedule properties despite execution of Ext. A2 settlement deed are in joint possession and enjoyment of the plaintiffs and the defendant. Strangely enough, such a conclusion had been reached expressing a view that Ext. A2 is a settlement deed. Ext. A2 deed restricts alienation of the properties allotted to the parties appears to be the reason which prompted the court below to hold that under the document, a partition had not been effected between the parties. Restriction on alienation when the deed itself evidences a division and separate enjoyment has no merit as such restraint falls within the mischief of Section 10 of the Transfer of Property Act, 1882, and, therefore, not binding on the parties. Whatever be the admission of the defendant with respect to that restrictive covenant in the deed, necessarily, whether that restraint of alienation can be recognized has to be examined by the court with reference to the prohibition against such restraints under Sections 10 and 11 of the Transfer of Property Act, 1882. There is no merit in the claim for partition raised by the plaintiffs ignoring the binding nature of the settlement arrived at under Ext. A2 agreement. Preliminary decree and judgment passed by the court below holding that Ext. A2 is only a ''settlement'' and the properties under that agreement remained joint and undivided accepting the case of the plaintiffs is erroneous and unsustainable and is liable to be set aside.

The learned Counsel for the plaintiffs have raised an apprehension that the unsettling of the decision of the court below may affect the right of the plaintiffs over the building and premises, which had been excluded from the settlement effected by the parties in Ext. A2 deed. We find no merit in the apprehension posed by the counsel since whatever items of properties which are not settled among the parties under Ext. A2 deed shall continue to be so till its unity and jointness is disturbed under any mode recognized by law. We make it clear that in the present appeal challenging the preliminary decree granted in favour of the plaintiffs we have examined only the effect of Ext. A2 settlement deed as to whether it is intended only for sharing of the profits keeping the properties joint and undivided or whether there is a division by the allotments made in favour of the parties severing the status of tenants in common over such property. That being so, the reversal of the decision rendered by the court below and the consequent non-suiting of the plaintiffs would, in no way, affect the rights of the plaintiffs over the property, which still remain joint and excluded from allotment under Ext. A2 deed.

The appeal is allowed, setting aside the decree and judgment passed by the court below. O.S. No. 156 of 1989 on the file of the Sub Court, Kozhikode shall stand dismissed. Both parties are directed to suffer their respective costs.