G. Prabhuraja Rao and Others vs Ch. Thirupattamma and Others

K. Ramaswamy, J.—The 1st Appellant is the son and the 2nd and the 3rd Appellants are the daughters of C. Punnaiah. The 1st Respondent-1st Defendant, Tirupattamma, is their mother. Their suit for recovery of possession of B, C and D schedule properties, except the land in an extent of half of Ac. 0-45-1/2 cents of the northern half of Ac. 0-91 cents in D. No. 341/A in item 5 of the D schedule, was dismissed. As against the decree of dismissal, this appeal has been filed.

The facts of this appeal are as follows. In the year 1946 there arose disputes between their father, Punnaiah, and mother, the 1st Respondent, resulting in the 1st/Respondent filing a suit, O.S. No. 146 of 1947, for maintenance for herself and the 3rd Appellant. In that suit, Punnaiah was impleaded as the 1st Defendant and her father-in-law as the 2nd Defendant. However, at the instance of PWs 1 and 2 and others, a compromise was effected and a compromise memo was filed. A decree ensued thereunder. In the compromise the terms are as follows:

(1) that the 1st Plaintiff do live with her husband, the 1st Defendant;

(2) that the 1st Defendant do maintain Plaintiffs 1 and 2 and lead a family life with his wife, the 1st Plaintiff, and perform the marriage of the 2nd Plaintiff;

(3) that the 1st Plaintiff do discharge the debts contracted by her from out of the usufruct of the land of Ac. 4-0 Poranki given to her by her father; and that she shall enjoy the said property during her life time and the said property shall, after her lifetime, pass on to her male issues with absolute rights and if there are no male issues, it shall pass on to her female issues with absolute rights;

(4) that Defendants 1 and 2 do give up their contest regarding division between themselves, that Mangamma (1st Defendant''s mother and 2nd Defendant''s wife) do enjoy during her lifetime the usufruct on the land of Ac. 3-50 cents in D. No. 13 in patta No. 924 and that after her death, the 2nd Defendant shall enjoy during his lifetime the usufruct therefrom, and that after his (2nd Defendant''s) death, the 1st Defendant shall likewise enjoy the same without any right to sell; and that after his (1st Defendant''s death the properties shall devolve on his children with absolute rights;

(5) that the 1st Defendant do enjoy and maintain his family with the usufruct from his lands in D. No. 250 A, 341 and 265 B without any absolute rights and that after his death, the said lands shall pass to his children with full rights;

(6) that in case of separation between the 1st Plaintiff and the 1st Defendant, the 1st Plaintiff shall enjoy only the usufruct from out of Ac. 3-0 of land called Pathurivari Chenu in D. No. 270 and that after her death, it shall devolve on the 1st Defendant;

(7) that in case the 1st Defendant has no issues he shall exercise full rights over lands given to him as a life estate;

(8) ...

(9) that the parties be at liberty to enforce the terms of this compromise in court through process of execution and to get this compromise decree registered in the Office of the Registrar;

Subsequently Plaintiffs 1 and 2 were born on May 18, 1955 and May 6, 1951 respectively. It is their case that contrary to the terms of the compromise, their father has disposed of the properties, for which he has no power, under Ex.B-25, settlement deed, dated Nov.21, 1956 in favour of his sister, the 2nd Defendant, Ex.B-16 dated May 4, 1965, sale deed executed in her favour in respect of item 3 of D schedule, Ex.B-2, sale deed, dated May 4, 1965 in favour of the 3rd Defendant in respect of item 4 of D schedule, Ex.B-13, sale deed, dated Aug.14, 1968 in respect of item 3 of 5 schedule in favour of the 4th Defendant, Ex.B-8, sale deed, dated Sep. 29, 1967 in favour of the 6th Defendant in respect of item 2 of B schedule. It is their case that the sales are not binding on them. In the appeal the suit is not pressed as against the claims of dependants 5 and 7 to 10. Therefore, it is not necessary to narrate the alienations made in their favour.

It is the case of Defendant No. 2 that the property covered by the settlement deed, Ex.B-25, was given as Pasupu Kunkama by her father and it was acknowledged by her brother, Punnaiah, by executing Ex.B-25. Therefore, it is not vitiated by any error of law. With regard to Ex.B-16 her case is that she is a bona fide purchaser for value and, therefore* the Appellants are bound by the sale. The same plea was raised by Defendants 3, 4 and 6. They also pleaded that the 1st and the 2nd Appellants are not the legitimate children of Punnaiah.

As many as 13 issues have been framed by the lower court and issues 1 to 8 relate to the points in dispute. The court below on a consideration of the evidence found that the decree, Ex.B-1 (by mistake marked as Ex.D-1), is true but it was not acted upon, and that it is not a family arrangement but it is admissible in evidence. Appellants 1 and 2 are the legitimate children of Punnaiah born to the 1st Respondent. It accordingly dismissed the suit except in respect of the land if an extent of half of Ac. 0-45 1/2 cents of the northern half of 91 cents in item 5 of D schedule.

Sri Sreerama Murthy, the ld Counsel for the Appellants, has contended that the court below has committed error of law in holding that Ex.B-1 is not a family arrangement while accepting that it is admissible in evidence as record of past transaction. He has also contended that the court below ought to have held that under Ex.B-1 Punnaiah has disclaimed his rights in favour of the progeny, viz., the Appellants; life estate was created in favour of the members of the family and vested remainder to he Appellants and thereby, Punnaiah is divested of his title to alienate the properties, in favour of the 3rd parties. Therefore, the sales are invalid and not binding on the Appellants.

Sri Subbaiah, the Id. counsel for the Respondents, has resisted the above contentions and contended that Ex.B-1 is a compulsorily registrable document. The suit was only for maintenance. A right or interest relating to immovable property was sought to be created in favour of the Appellants under Ex.B-1. Therefore, it is a compulsorily registrable document u/s 17 and non-registration renders it inadmissible u/s 49 of the Indian Registration Act. He further contends that it is not a family settlement. There are no claims, muchless bona fide claims in presenti or in future in respect of the subject-matter of the suit. For the first time interest is sought to be created. Therefore, even if it is said to be a family arrangement, it should be registered compulsorily. It is also further contended that the alleged arrangement was not intended to be acted upon in fact both the 1st Respondent and Punnaiah had not acted upon Ex.B,-l. Therefore, the conclusions reached by the court below, though for different reasons, are valid and are not liable to be interfered with. He has also contended that Appellants 1 and 2 are not legitimate children of Punnaiah and the finding given by the court below is not correct.

The first question, therefore, is whether Appellants 1 and 2 are the legitimate children of punnaiah, their father. The court below has given cogent and valid reasons in support of the conclusion that they are the children born to Punnaiah. One important factor which stars from the record is that Clause (1) of Ex.B-1 expressly enjoins that the 1st Respondent should live with her husband, Punnaiah, and that is the first condition attached to the decree. At that time they were not born. The 1st Plaintiff was born in 1955 and the 2nd Plaintiff, in 1951. Therefore, the finding of the court below that they are legitimate children of Punnaiah is well supported by a clinching evidence, apart from the oral evidence of their mother the 1st Respondent, who is examined as PW3. According, I hold that they are the legitimate children of Punnaiah and the 1st Respondent.

The next question is whether Ex.B-1 is a compulsorily registrable document. Undoubtedly Section 17(1)(b) of the Indian Registration Act. 1908 (Act XVI of 1908)(for short ''the Act'') provides that any non-testamentary instrument which purports or operate to create, declare ... whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property, sh. a) be registered. Sub-Section (2) of Section 17 excludes the mandatory requirement in relation to the anumerated instruments; Clause (vi) excludes any decree of order of a Court, but an exception has been engrafted there under; "except a decree or order expressed to be made on a compromise and compromising immoveable property other than that which is the subject matter of the suit or proceeding." This is the subject of a decision of this Court and relevant there to is Ankamreddi Konda Vs. Ankam Reddi Pedademudu (died) and Others The question, the subject-matter of the suit, was considered by Kundula Ramayya Vs. Bangaru Rangaraju and Others, , which was approved by the Division Bench of this Court in A. Konda''s case (supra), thus:

...specific immoveable property must be the subject-matter of litigation. There must be a claim or right in or to the specific immovable property asserted in the litigation and relief sought in respect thereof in order to make the said property the subject-matter of the suit.

This was again considered by Gopal Rao Ekbote, J., as he then was, in T. Dubbiah v. Laxmiah AIR 1980 AP 253. It was held thus:

...it seems to be plain that a decree or order based on a compromise comprising properties which are the subject-matter of the suit and properties which are outside the suit is compulsorily registrable only to the extent of the property which is outside the subject-matter of the suit. But it is not registrable in so far as it relates to the subject-matter of the suit. In other words, a decree or order based on a compromise comprising properties other than the subject-matter of the suit or proceeding, to that extent it would not be exempt from registration.

Thus, it is now well-settled that the word "subject-matter" has been used with reference to immovable property, which is the subject-matter of dispute and settlement by compromise. If it is not so, then the exemption accorded under Sub-section (2) of Section 17 stands taken away and again it falls back within the ambit of Sub-section (1) of Section 17 of the Act and thereby, it becomes a compulsorily registrable document and non-registration thereof, renders it inadmissible u/s 49(c) of the Act, unless it is received as evidence of any collateral transaction not required to be effected by registered instrument, as excepted under the proviso thereto.

The question, therefore, is whether Ex.B-1 is a compulsorily registrable document. In this regard we have to took to the back-ground under which Ex.B-1 came to be recorded as a decree. Tirupathamma, the mother of the Appellants, and the 3rd Plaintiff laid the suit for maintenance against Punnaiah, her husband, and Krishnaiah, her father-in-law, and they also sought for a charge over the joint family properties. In the written statement it is pleaded that there was a division in status between Punnaiah and his father, Krishnaiah, and thereby the share of the father-in-law was sought to be excluded from the charge being created for utilisation of the maintenance decree. As evidenced from the oral evidence of PWs.1 and 2 and mediators there was a mediation effected between the parties and in that mediation it was agreed under Clause (3) that the mother should enjoy not only the properties given by her father for her life but also discharge some debts and she should be life estate holder in that regard and the vested remainder shall pass on to male issues, viz., the 1st Appellant. Krishnaiah and his wife, Mangamma, have life estate in certain items of the property and thereafter Punnaiah has life estate and vested remainder in favour of the Appellants, under Clause (4). Similarly, Punnaiah has life estate under Clause (5) in respect of some items of the property and vested remainder to the Appellants. Under Clause (6) in the event of separate living by Tirupathamma, the mother, she should enjoy the properties given in Clause (6) for her life and vested remainder to the Appellants. It is well settled that wife has a statutory charge on the estate of the husband and also of the joint family property for her maintenance. Equally the daughter also has a charge for her maintenance during her minority and also marriage expenses, on the joint family properties. With a view to settle amicably the disputes, they entered into a family arrangement and that family arrangement was thereafter reduced into writing and placed before the Court to record it as a past transaction.

In Maturi Pullaiah and Another Vs. Maturi Narasimham and Others, , Subba Rao, J., as he then was, has held thus:

Although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu Family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms, thereto are fair in the circumstances of a particular case, the Courts will more readily give assent to such an arrangement than to avoid it.

In Kale and Others Vs. Deputy Director of Consolidation and Others, Fazi Ali J., speaking for the Court, has held that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. He has also held:

The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and is, therefore, not compulsorily registrable.

It is further held:

The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.

In the light of the above law and in view of the circumstances mentioned above, the necessary conclusion is that it is a family arrangement and that Punnaiah and his father wanted to settle the claims with Tirupathamma, the mother of the Appellants, once for all, so that there may not be any future litigation or possible claims in that regard. This was agreed to in a conference outside the Court and they settled the disputes. Subsequently this was informed by way of a memorandum to the Court as a record of past transaction and it was placed before the Court. The Court has given its assent to this past transaction and then reduced it into a decree, Ex.B-1. It is true, as contended by Sri Subbaiah, the Id. counsel for the Respondents, that if there is any right created for the first time, under the document, Ex.B-1, since it is not the subject-matter of the suit, the exception engrafted in Clause (vi) of Sub-section (2) excludes the exemption under Sub-section (1)(b) of Section 17 of the Act. But, as stated earlier, it is not a title, right or interest for the first time created under the document. The children have a preexisting right and the daughters have a pre-existing claim for maintenance and marriage expenses and they have a statutory right and also statutory charge for maintenance u/s 39 of the Transfer of Property Act. Under these circumstances, no right, title or interest is created for the first time under Ex.B-1. Thereby, I hold that it is not a compulsorily registrable document and therefore it does not become inadmissible u/s 49 of the Registration Act. It is held that it is a family arrangement bona fide entered into to settle the disputes. The parties are, therefore, bound by it. The Court below has committed error of law in treating it as not being binding as a family arrangement, on the parties. Once it is a family arrangement, the question of volition to act or not to act upon does not arise. The necessary question of volition to act or not to act upon does not arise. The necessary question to be considered is whether Punnaiah has disposing right or power after Ex.B-1 to deal with the properties under Ex.B-1. As already stated, it is a past transaction declaring the rights of the parties and thereunder only life estate was created in favour of Punnaiah in respect of only certain items of the property and vested remainder in favour of the Appellants. But we have seen that under Exs.B-16, B-13, B-2 and B-8 what was sold is not his life estate. The entire property having been divested of his right in a compromise, which was subsequently recorded under Ex.B-1 as a past transaction, he has no disposing power to deal with the property as owner thereof. Thereby, though Defendants 2 to 4 and 6 may be bona fide purchasers for value, since Punnaiah, their father, has not title to divest himself of his right, the Defendants do not acquire any title to the property, nor such a sale binds the Appellants. With regard to Ex.B-25, the settlement deed, it is well settled that the joint family has to give a reasonable portion of the joint family properties towards pasupu Kunkoma of the ladies in the joint family, viz., sisters and daughters. The 2nd Defendant is the sister of Punnaiah. Therefore, he executed the settlement deed giving reasonable(?).

In the result, the decree as against the 9th Defendant for possession of Ac. (M5 1/2 cents of the northern half in Ac. 0-91 cent covered by D. No. 341/A in item 5 of D schedule is confirmed and the decree for mesne profits to be ascertained on a separate application is also confirmed; the decree dismissing the suit in respect of the property covered by Ex.B-25 is also confirmed. In other respects, the decree of the trial Court is set aside and there shall be a decree in respect of item 3 of D schedule covered by Ex.B-16 sale deed; item 4 of D schedule covered by Ex.B-2 sale deed; item 3 of B schedule covered by Ex.B-13 and item 2 of B schedule covered by Ex.B-8 sale-deed. In respect of other items, the decree of the Court below is confirmed. The appeal is partly allowed. But in view of the facts and circumstances, each party is directed to bear their costs.