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Judgment
Reilly, J.—The Plaintiff and the Defendant, his grandson, are the only coparceners in a Hindu joint family. The Plaintiff sues for a declaration
that a written instrument, Ex. A, dated 25th January, 1930 and admittedly signed by him, is void, and for partition of the family property. His case
in regard to Ex. A appears to be twofold, first, that he can claim a declaration that it is voidable on account of fraud and misrepresentation and
secondly, that he can ignore it as void for want of consideration and for another reason, which I will mention shortly, and that it is therefore no bar
to the partition which he claims. Wallace, J., who heard the suit, dismissed it; and against that decision the Plaintiff appeals.
The Plaintiff''s story in his plaint is that after the death of his only son in August, 1929, he was not satisfied with the Behaviour of his grandson,
the Defendant, a young man then of about 18 years, and that he therefore wished for a partition on the following lines: first, that provision should be
made for four of the Plaintiff''s daughters by settling on each of them a small house from the share that was to be allotted to the Plaintiff; secondly,
that a house in Thambu Chetty Street and the family house in another street, worth together Rs. 40,000, should be allotted to the Plaintiff''s share;
thirdly, that the family business in brass utensils should be allotted to the Defendant; fourthly, that out of the Defendant''s share two houses worth
Rs. 8,000 should be given to the Defendant''s mother; fifthly, that the jewels in the possession of the various members of the family should be kept
by those in whose possession they were; and, sixthly, that the remaining property of the family should be kept undivided. The Plaintiff goes on in his
plaint to allege that he instructed a clerk, Desikachari, who had long been employed in the family business, that that was what he wished to be
done. Paragraph 7 of the plaint is as follows:
The said Desikachariar said that the Defendant was agreeable to this course and thereupon the Plaintiff instructed Desikachariar to have a
document prepared after consulting lawyers to carry out the proposals |et forth above. In or about the last week of January, 1930, on a Saturday
rught after 10 P.M. the said Desikachariar came to the Plaintiff along with the Defendant and one Ramaswami Aiyar, represented that the
document had been prepared in accordance with the express intentions of the Plaintiff and had been approved by a vakil and further informed the
Plaintiff that it is better to execute the document at once. On the Plaintiff asking him to read the document the said Desikachariar assured the
Plaintiff that the document contained the terms mentioned above in paragraph 6 supra. As the Plaintiff had implicit confidence in the said
Desikachariar and believing in the truth and representations made by the said Desikachariar, in the presence of and to the hearing of the Defendant,
he signed the document then and there and the Defendant also put his signature to the said document.
The plaint goes on to state:
The said Desikachariar was instructed by the Plaintiff to keep the document with him.
The story goes on that after about 15 days the Plaintiff obtained from Desikachariar what was represented to be a copy of the document which
he had executed, and then to his surprise he found that it was not the kind of document which he had intended but something very different. Ex. A,
after setting out that there had been some misunderstandings : between the parties, that it would not be proper to remain in that state and that a
partition should not be effected between them, provides that the two specified houses should be given to one of the Plaintiff''s daughters, four
shops to another, a house and site to a third and a house and site to a fourth; then that two houses should be given to the Defendant''s mother for
her life, and after her death they should go to her daughters; then that the Defendant should get the brass business, which I have mentioned, with its
stock and its outstandings and discharge its debts. Next it is provided that the remaining Immovable property shall be enjoyed by the Plaintiff and
the Defendant during Plaintiff''s life and after his death by the Plaintiff''s wife, if she survives him, and the Defendant, during all which time none of
the parties ^ concerned shall have power to alienate the property, and after J the death of the Plaintiff and his wife the property shall go to the
Defendant absolutely. There is a further provision that out of the income from the Immovable property the Plaintiff shall be at liberty to take not
more than Rs. 200 a month to spend as he likes, and after his death his wife shall be at liberty to take a similar amount. Then it is provided that the
Defendant shall get all the vessels and moveable property of the family and that the jewels shall be taken by those persons in whose use they are.
Finally, there is an addition at the end of the document that the Plaintiff''s daughters shall get the property allotted to them only after the death of the
Plaintiff and his wife. This, it will be seen, is a very different arrangement from what the Plaintiff alleges in his plaint he had told Desikachari was
what he wished.
In his written statement the Defendant says in paragraph 5:
This Defendant states that as per the desire expressed by the parties and with a view to record the agreement and arrangement which has been
arrived at prior thereto, Ramaswami Aiyar prepared the document, dated 25th January, 1930, with legal assistance, and both the Plaintiff and
Defendant executed the said document after reading the same and with full knowledge and understanding of its contents.
In paragraph 11 he says:
This Defendant denies the further allegations in the said paragraph that after 10 P.M. Desikachari went to the Plaintiff with the Defendant and
Ramaswami Aiyar. On the other hand, the document was prepared and written by Ramaswami Aiyar at the express directions of the Plaintiff and
the same was executed by. the parties, at about 8 P.M. as per previous arrangement The Plaintiff first read over the document and executed it and
the Defendant also did so. Ramaswami Aiyar and Desikachari attested the execution.
Now it will be seen that the Plaintiff has a difficult story to prove; and his success, if he is to succeed, must depend mainly on his own evidence
and that of P.W. 3, the son of one of his daughters, who is said to have been present when Ex. A was executed. Wallace, J. does not believe the
Plaintiff''s story at all. He regards the Plaintiff and P.W. 3 as entirely untrustworthy witnesses; and he says in his judgment:
I am quite satisfied therefore that the Plaintiff signed Ex. A with full knowledge of its contents and that his story of what occurred on the night of
25th January, 1930, is an elaborate perversion of the truth.
* * * *
Mr, Viraraghava Aiyar has urged that Wallace, J. was wrong in speaking of this document as "" a family settlement"". Perhaps ""family settlement
was not exactly an appropriate expression for the transaction embodied in Ex. A, as it cannot be said that there were any disputes about the family
property to be settled. But I do not see any difficulty in regarding the transaction as a family arrangement, by which the rights of the executants
were modified, a family arrangement in the sense that in England a transaction between a father and his son barring an entail is treated as a family
arrangement, in regard to which inadequacy of consideration is not allowed to throw serious doubt upon the good faith of the transaction.
According to the Plaintiff''s own evidence there were reasons why he should wish such a family arrangement to be made. He says, referring to the
Defendant, "" Because his evil ways were growing my apprehension was that I would lose my property also"". Then again he says "" Yes "" to a
question ""So that you wanted to safeguard your share as also the Defendant''s share""? And again he says "" Because he was in evil ways and there
was a likelihood of all the money being squandered"". Now we may reasonably suppose that the Plaintiff took an interest in the welfare of the
Defendant in spite of what he regarded as the improper behaviour of the Defendant towards him. This is not the occasion for attempting to decide
the exact legal effect of the different provisions of Ex. A. But it may be noticed that one of its provisions will prevent the Defendant from alienating
his share of the Immovable property of the family while his grandfather and grandmother are alive. That in the circumstances represented by the
Plaintiff himself in his evidence might well be an object which the Plaintiff desired to attain for the Defendant''s benefit. Then the Plaintiff according
to his evidence was obviously nervous about the Defendant''s control of the brass business, in which the Defendant was trying to take the whole
management to himself. Under the arrangement made in Ex. A, if the Defendant unfortunately makes losses in that business, they will fall primarily
upon his own share of the family property and in respect of debts incurred after the creditors of the business have notice of the arrangement only
upon the Defendant''s share. That too might be an object which the Plaintiff might wish to attain. It will be seen that the arrangement makes a
provision that the Plaintiff''s widow shall have an interest in the whole Immovable property of the family for her life. That the Plaintiff could not
arrange except with the consent of the Defendant, unless he had effected a partition, when he could do what he liked with his own share. Again the
arrangement makes provision for the Plaintiff''s four daughters to a considerable extent, and that too the Plaintiff could not do without a partition,
unless the Defendant agreed. If the Plaintiff did not wish to have a partition and wished to prevent the Defendant from having a partition in the
Defendant''s own interest, then the arrangement under Ex. A becomes quite intelligible. I do not think it is possible to say that the terms of Ex. A
are so disadvantageous to the Plaintiff or so outrageous, as Mr. Viraraghava Aiyar has represented, that he could not possibly have agreed to
them, if he had understood them.
[His Lordship then discussed the evidence and continued as follows:]
In my opinion there is no sufficient reason for differing from Wallace, J.''s finding that the Plaintiff''s story is untrue and that the Plaintiff executed
Ex. A with knowledge of its contents and with free consent.
But it has been urged by Mr. Viraraghava Aiyar that, even if that be so, Ex. A may be no bar to the Plaintiff''s present suit. He urges that there
was no consideration for the agreement embodied in Ex. A. I have already discussed some of the elements of consideration for that agreement;
and it may be added that, if, as I should be prepared to find in this case, the Plaintiff did not want a partition but on the contrary wanted to prevent
a partition, then the Defendant''s forbearance from his right of partition would itself serve as another element of consideration.
But it has been further urged that an agreement between Hindu coparceners not to exercise their right of partition is in itself invalid. ''That
appears to be the view of the Bombay High Count. In Ramlinga Khanapure v.. Viru. Pakshi Khanapure ILR (1883) 7 Bom. 538 it was decided
''that an agreement between coparceners never to divide certain property is invalid under the Hindu Law as tending to create a perpetuity. That is
not the exact question before us. But it appears that in that case the learned Judges were of opinion that an agreement between coparceners not to
divide, even if not intended to create a perpetuity, but only to be effective for a certain period or for their lives, would be invalid; and that I
understand is the view still taken in Bombay. The learned Judges say that ""the right to demand a partition is in itself superior, as a part of the
Hindu''s public law in the larger sense, to the conventions of individuals."" With very great respect I am not able to follow that. As Mr.
Krishnaswami Aiyangar for the Defendant has urged, the right of partition itself has been a historical development in Hindu Law. At different stages
the right has varied. At the present day it varies among different classes of Hindus in different parts of the country. Although of course Hindu
coparceners no more than any one else can create perpetuities except under special provisions, I can see no legal obstacle to prevent two
coparceners from agreeing for consideration that for a certain time or until a certain event or for their lives they will not exercise their right to divide.
That this is possible is the view held by the High Courts of Calcutta and Allahabad. See Rajender Dutt v. Sham Chund Mitter ILR (1880) 6 Cal.
106, Srimohan Thakur v. MacGregor ILR (1901) 28 Cal. 769, Krishnendra Math Sarkar v. Debendra Nath Sarkar (1908) 12 C.W.N. 793 and
Rup Singh v. Bhabhuti Singh ILR (1919) 42 All. 30. There is no direct decision on the question in this Court; but I understand from the judgments
in T.S. Ramabhadra Odayar and Another Vs. T.S. Gopalaswami Odayar and Others, that both the learned Judges, who disposed of that case,
were of opinion that such an agreement would be valid.
In my opinion therefore, both because Ex. A includes an agreement between the Plaintiff and the Defendant not to divide the Immovable
property of the family while the Plaintiff and his wife are alive and because Ex. A embodies a family arrangement, it is a bar to the Plaintiff''s suit. In
my opinion, this appeal should be dismissed with costs.
Burn, J.
I agree and have nothing to add.