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PETITIONER: KALE & OTHERS

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION ORS

DATE OF JUDGMENT21/01/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  807            1976 SCR  (2) 202  1976 SCC  (3) 119

ACT:      Family  arrangement-Its  object  and  purpose-Principle governing-if  should   be   registered-Oral   arrangement-If permitted-If would operate as an estoppel      Registration Act.  s.  17(1)(b)-Family  arrangement  if should be compulsorily registered.

HEADNOTE:      (A) The  object of  a family  arrangement is to protect the family  from long  drawn litigation  or perpetual strife which mars  the unity  and the  solidarity of  the family. A family  arrangement  by  which  the  property  is  equitably divided between  the various  contenders so as to achieve an equal distribution  of wealth,  instead of concentrating tho same in  the hands  of a  few, is  a  milestone  in  the  ad ministration of  social justice.  Where by  consent  of  the parties a  matter has  been settled, the courts have learned in favour  of upholding such a family arrangement instead of disturbing it  on technical  or trivial  grounds. Where  the courts find that the family arrangement suffers from a legal lacuna or  1 formal  defect, the rule of estoppel is applied to shut  out the plea of the person who being a party to the family arrangement,  seeks to unsettle a settled dispute and claims to  revoke the  family arrangement under which he has himself enjoyed some material benefits. 1208 F-H; 209 A-B]      (B) (1)  The family  settled must be bona fide so as to resolve family  disputes. (ii)  It must be voluntary and not induced by  fraud, coercion or undue influence; (iii) It may be even  oral, in  which case and registration is necessary; (iv) Registration is necessary only if the terms are reduced to writing  but where the memorandum has been prepared after the family  arrangement either  for the purpose of record or for information  of court,  the  memorandum  itself  do  not create or  extinguish any  rights in immovable property and, therefore. does  not fall within the mischief of s. 17(2) of the Registration  Act and  is not  compulsorily registrable; (v) The  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. But,  even where  a party  has no  title and the other party  relinquishes all its claims or titles in favour

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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  by the  courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement. such family  arrangement is final and binding on the parties to settlement. [209 G-H; 21 0 A-E]      Lala Khunni  Lal &  Ors v. Runwar Gobind Krishna Narain and Anr.  L.R 38  I.A. 8,.  102: Mt.  Hiran Bibi  and others v.Mt. Sohan  Bibi, A.I.R.  1914 P.C  44. Saltu Madho Das and others v.  Pandit -Mulkand  Ram   another 1955] 2 S.C.R. 22, 42-43. Ram  Charan Das v. Girijanandini Devi & Ors. [1965] 3 S.C.R 841,  850-851. Tek  Bahadur Bhujil  v. Devi  Singh and others, A.I.R.  1966 S.C. 292, 295: Maruri Pullaiah and Anr. v. Maturi  Narasimham and  Ors. A.I.R  1366 SC 1836; Krishna Biharflal v.  Gulabchand and  others. [1971] Supp. SCR 27 34 and S.  Shanmugam Pillai  and others  v. K. Shanmugam Pillai and others,, [1973] 2 S.C.C. 312, followed.      Ram Gopal  v. Tulshi  Ram and another, A.I.R. 1928 All. 641 649; Sitala Baksh Singh and others v. lang Bahadur Singh and others,  A.I.R. 1933 Oudh 347, 348-349. Mst. Kalawati v. Sri Krishna  Prasad and  others, I.L.R.  19 Lucknow  57. 67. Bakhtawar v.  Sunder Lal  and others.  A.I.R. 1926 All. 173, 175 and  Awadh Narain  Singh and others v. Narain Mishra and others, A.I.R. 1962 Patna 400, approved. 203      On the  death of the father the family consisted of two unmarried daughters A respondents 4 and 5) and appellant no. 1 (son  of the  married eldest  daughter, appellant  No. 2). After the  marriage of respondents 4 and S the property left behind by  the father  was mutated  in the name of appellant no. I  who, under  s. 36  of the U.P. Tenancy Act; 1939, was the sole heir. Eventually, however, the parties arrived at a family settlement allotting khatas 5 and 90 to the appellant No. 1  and khatas  53 and  204 to  respondents 4 and S. This family arrangement  was not  registered. The revenue records were, how  ever, corrected.  At  the  time  of  revision  of records under  the U.P. Consolidation of Holdings Act,’ 1953 appellant No.  I found  that he  was shown  as having ’ one- third share in all the properties. The Consolidation officer removed his  name from the records and substituted the names of the  sisters namely appellant No. 2 and respondents 4 and 5. On  appeal the  Settlement officer  restored the names of appellant no.  1 in  respect of  khatas  5  and  90  and  of respondents 4  and S  in respect  of khatas 53 and 204 which was in  accordance with  the family  arrangement. The Deputy Director of  Consolidation reversed  this finding.  The High Court dismissed the appellants’ appeal.      On further  appeal to this Court, it was contended that (1) the  High Court erred in rejecting the compromise on the ground that  it was  not registered  but that in view of the oral family  arrangement no  question of registration of the compromise  arose  and  (ii)  even  if  the  compromise  was unregistered it  would operate  clearly as  estoppel against respondents 4 and S.      Allowing the appeal, ^      HELD: The  Deputy Director  of Consolidation as well as the High  Court was  wrong in  taking the  view that  in the absence of  registration the family arrangement could not be sustained. The High Court also erred in not giving effect to the doctrine of estoppel. 1217 Cl      (1) (a) In the instant case the facts clearly show that a compromise  or family  arrangement had  taken place orally before the  petition was  filed for mutation of the names of the parties.  (b) The  word family  cannot be construed in a

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narrow sense so as to be confined only to persons who have a legal title  to the  property. When the talks for compromise took place  appellant No.  I was  a prospective  heir and  a member  of   the  family.   Secondly  respondents  4  and  S relinquished their  claims in  favour of  the  appellant  in respect of  Khatas 5 and 90. The appellant would, therefore, be deemed to have antecedent title which was acknowledged by respondents 4 and S. [217G]      (c) There  can be  no doubt that the family arrangement was bona  fide. At  no state of the case had the respondents raised the issue of bona fides. [218D]      (d) The  allegation of  fraud and  undue influence must first dearly be pleaded and then proved by clear and content evidence. In the present case, there ,, was neither pleading nor proof  of this  fact by respondents 4 and 5. Respondents Nos. 4 and 5 who were parties to the family arrangement and, who, having  been benefited  thereunder, would  be precluded from assailing the same                                                       [219A]      Ram Gouda  Annagouda &  others v. Bhausaheb and others, J.R. 54 I.A. 396. referred to.      (2)  Assuming   that   tho   family   arrangement   was compulsorily registrable, a family arrangement being binding on the  parties to  it, would  operate  as  an  estoppel  by preventing the  parties after  having taken  advantage under the arrangement to resile from the same or try to revoke it. In the  present case  respondents Nos.  4  and  5  would  be estoppel  from   denying  the   existence  of   the   family arrangement or from questioning its validity. [223 F]      Kanhai Lal v. Brij Lal and Anr., L.R. 45 I.A. 118, 124. Dhiyan Singh and Anr. v. Jugal Kishore and Anr.[1952] S.C.R. 478. Ram  Charan Das  v. Girja  Nandini Devi & Ors, [1965] 3 S.C.R. 841,  850-851. Krishna  Biharilal v.  Gulab chand and others, [1971]  Supp. S.C.R.  27, 34 and S. Shanmugam Pillai and others  v. K.  Shanmugam Pillai  and  others,  [1973]  2 S.C.R. 312. referred to. 204      Rachcha V.  Mt. Mendha  A.I.R. 1947  All. 177 and Chief Controlling Revenue  Authority v.  Smt. Satyawati  Sood  and others, A.I.R. 1972 Delhi 171, held inapplicable.      Mr. Justice  Sarkaria concurred with majority view that the family arrangement was binding, but reserved his opinion with regard  to the  alternative proposition,  that assuming the family arrangement was compulsorily regrettable under s. 17 (1)  (b) of  the registration  Act, it  could be  used to raise an  estoppel against  any of  the parties to the suit. [227 E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  37 of 1968.      Appeal by  special leave  from the  judgment and  order dated 17-5-1966  of the  Allahabad  High  Court  in  Special Appeal No. 640 of 1965.      R. K.  Garg, S.  C. Agrawala and V. J. Francis, for the appellants.      B. D. Sharma, for respondents Nos. 4 and S      The Judgment of V. R. Krishna Iyer and S. Muataza Fazal Ali JJ.  was delivered  by Fazal  Ali, J. R. S. Sarkaria, J. gave a separate opinion.      FAZAL ALI J. This is an appeal by special leave against the judgment  of the Allahabad High Court dated May 17, 1966 by which  the appeal  against the decision of a Single Judge

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of the  High  Court  rejecting  the  writ  petition  of  the appellants had been dismissed. An application for granting a certificate for  leave to  appeal to  this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August , 1967.      The case had a rather chequered career and the disputes between the  parties were  sometimes settled  and  sometimes reopened.  In   order,  however,  to  understand  the  point involved in the present appeal, it may be necessary to enter into the  domain of  the contending claims of the respective parties put  forward before  the Revenue Courts from time to time. To  begin with  the  admitted  position  is  that  one Lachman the  last propitiator  was the tenant and the tenure holder of  the property  in dispute  which consists of 19.73 acres of land contained in Khatas Nos. 5 & 90 and 19.4 acres of land comprising Khatas Nos. 53 & 204. Lachman died in the year 1948  leaving behind  three daughters,  namely, Musamat Tikia, Musamat  Har Pyari  and Musamat  Ram  Pyari.  Musamat Tikia was  married during  the life  time of Lachman and the appellant No.  1 Kale  is the  son of Musamat Tikia. Thus it would appear  that after  the death  of Lachman  the  family consisted of  his two  unmarried daughters Har Pyari and Ram Pyari and  his married  daughter’s son  Kale. Under the U.P. Tenancy  Act,   1939  which  applied  to  the  parties  only unmarried daughters inherit the property. The first round of dispute appears  to have  arisen soon  after  the  death  of Lachman in  the year  1949  when  Panchayat  Adalat  of  the village was  asked to  decide the  dispute between  Prem Pal nephew  of   Lachman  and   the  appellant   Kale  regarding inheritance to  the property  left by Lachman. Har Pyari and Ram Pyari  appear to  have been  parties to that dispute and the Panchayat  Adalat after making local enquiries held that Har Pyari  having been  married had  lost her  right in  the estate and Ram 205 Pyari was  also an  heir so  long as she was not married and after her   marriage  the legal  heir  to  the  property  of Lachman would  be the  appellant Kale.  In the year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to  the tenure holders also. This Act was further amended on  October 10,  1954 by  Act 20  of 1954  by which, amongst the  list of  heirs enumerated  under  the  statute, "unmarried daughter"  was substituted  by ’’daughter’’ only. According to the appellant in this Court as also in the High Court Ram Pyari respondent No. S was married on February 25, 1955 and  thereafter the  appellant filed  a petition before the Naib  Tahsildar, Hasanpur,  for expunging  the names  of respondents 4 and 5 from the disputed Khatas because both of the  daughters  having  been  married  ceased  to  have  any interest in  the property.  lt was therefore prayed that the appellant was  the sole  heir to the estate of Lachman under s. 3  of the  U.P. Tenancy  Act, 1939,  he alone  should  be mutated in  respect of  the‘property of  Lachman.  By  order dated  December  S,  1955  the  Naib  Tahsildar,  Hasaknpur, accepted the  contention of  the appellant  and expunged the names of  respondents 4  & 5  from the Khatas in dispute and substituted the  name of the appellant Kale. Soon thereafter on January  11, 1956,  respondents 4  & 5,  i.e. Musamat Har Pyari  and   Ram  Pyari   daughters  of  Lachman,  filed  an application before  the Naib Tahsildar for setting aside his order dated  December 5,  1955 which  had been passed behind their  back   and  without   their  knowledge.   While  this application of  respondents 4  & 5  was pending adjudication the Revenue  Court was  informed that talk of compromise was going on  between the parties which ultimately culminated in

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a  compromise  or  a  family  arrangement  under  which  the appellant Kale  was  allotted,  Khatas  Nos.  5  90  whereas respondents 4  & 5  were allotted  Khatas No.  53 &  204  as between them.  A petition was filed on August 7, 1956 before the Revenue  Court informing  it that  compromise  had  been arrived at  and in pursuance thereof the name of the parties may be  mutated in  respect of  the khatas  which  had  been allotted to  them. This  petition was  signed  by  both  the parties  and ultimately the Assistant Commissioner, 1 Class, passed an  order dated  March 31,  1957 mutating the name of the appellant  Kale in respect of Khatas Nos. 5 & 90 and the names of  respondents 4 & 5 in respect of Khatas Nos. 53 and 204. Thereafter it is not disputed that the parties remained in possession  of the  properties allotted  to them and paid land revenue  to the  Government. Thus  it would appear that the dispute between the parties was finally settled and both the parties  accepted the  same and that benefit thereunder. This state  of affairs  continued until  the year  1964 when proceedings for  revision of  the records  under s. 8 of the U.P. Consolidation of holdings Act, 1953 were started in the village Hasanpur  where the  properties were situated in the course of  which respondents 4 & 5 were entered in Form C.H. 5 as  persons claiming  co-tenure holders  to the  extent of 2/3rd share  with the  appellant Kale who was entered in the said form  as having  1/3rd share in all the Khatas. In view of this  sudden change  of the  entries which were obviously contrary to  the mutation  made in  pursuance of  the family arrangement entered  into between  the parties  in 1956, the appellant 206 Kale filed his objections before the Assistant Consolidation officer for changing the entries in respect of those Khatas. As  the  Assistant  Consolidation  officer  found  that  the dispute was  a complicated  one he by his order dated May 7, 1964 referred  the matter  to the  Consolidation officer. It might be  mentioned  here  that  when  the  proceedings  for revision of  the records  were started,  while the appellant filed his  objections, respondents  4 &  5 seem to have kept quiet and filed no objections at all. In fact under s. 9 (2) of the  U. P.  Consolidation  of  Holdings  Act,  1953,  the respondents could  have filed their objections, if they were aggrieved  by   the  entries   made  on  the  basis  of  the compromise.  Sub-section   (2)  of   s.  9   of   the   U.P. Consolidation of Holdings Act runs thus:           "Any person to whom a notice under sub-section (1)      has been  sent, or  any other  person  interested  may,      within 21  days of  the receipt  of notice,  or of  the      publication under  sub-section (1), as the case may be,      file,  before   the  Assistant  Consolidation  officer,      objections in respect thereof disputing the correctness      or nature  of the  entries in  the re  cords or  in the      extract furnished  therefrom, or  in the  Statement  of      Principles, or the need for partition." This is  a very  important circumstance which speaks volumes against  the  conduct  of  the  respondents  which  will  be referred to  in detail  in a  later part of our judgment and seems to  have been  completely brushed  aside  by  all  the Courts.      The Consolidation  officer  to  whom  the  dispute  was referred, by  his order dated July 27, 1964, framed a number of issues,  and after  trying the  suit, removed the name of the appellant  Kale from  Khatas 5  & 90 and substituted the names  of  appellant  No.  2  Musamat  Tikia  and  those  of respondents 4  & 5.  We might also mention here that for the first time  respondents 4  & 5  raised a  dispute before the

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Consolidation officer  denying that  the appellant  Kale was the grandson of Lachman. The Consolidation officer framed an issue on  this question  and after  taking evidence  clearly found that  the objection  raised by  respondents 4  & 5 was absolutely  groundless  and  that  the  appellant  Kale  was undoubtedly  the  grandson  of  Lachman.  The  Consolidation officer pointed out that even before the Panchayat Adalat as also in  the mutation  petition which  was filed  before the Naib Tahsildar  respondents 4  & 5  never disputed  that the appellant Kale  was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.      Thereafter the  appellant and  the respondents  4  &  5 filed an  appeal before  the Settlement  officer who  by his order dated November 28, 1964, restored the mutation made by the Naib  Tahsildar on  the basis  of the compromise, namely the appellant  was mutated  in respect of Khatas Nos. 5 & 90 and respondents 4 & 5 in respect of Khatas Nos. 53 & 204.      Thereafter respondents  4 & 5 filed a revision petition before the Deputy Director of Consolidation who by his order dated January 22, 1965, reversed the order of the Settlement officer and expunged 207 the name  of the  appellant Kale from Khatas Nos. S & 90 and recorded the  name of  respondent No. 5 Musamat Ram Pyari in respect of  these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.      Thereafter the  appellant Kale  and his  mother  Musama Tikia appellant No. 2 filed a writ petition in the Allahabad High Court  against the  order of  the  Deputy  Director  of Consolidation. The  writ petition  was heard  in  the  first instance by  a  Single  Judge  who  dismissed  the  petition upholding the  order of the Deputy Director of Consolidation The appellant  then filed  a special  appeal to the Division Bench of  the Allahabad  High Court  which also affirmed the judgment of  the Single Judge and dismissed the appeal-hence this appeal by special leave.      In support  of the  appeal Mr.  Garg appearing  for the appellants submitted  two points  of law  before us.  In the first place  he argued  that the grounds on which the Courts below have  not  given  effect  to  the  family  arrangement arrived at  between the  parties in  1956 culminating in the mutation in 1957 are not legally sustainable. The High Court took  an   erroneous  view  of  the  law  in  rejecting  the compromise on  the ground that it was not registered. It was argued that  an oral  family arrangement  had already  taken place earlier  and application before the Naib Tahsildar was merely for  the information  of the Court for the purpose of mutation of  the names  of the  parties in  pursuance of the compromise and,  therefore, no  question of  registration of the compromise in this case arose. Secondly it was contended that even  if  the  compromise  was  unregistered  it  would undoubtedly  operate   as  a   clear  estoppel  against  the respondents 4  & 5  who having  taken benefit thereunder and having remained  in possession  of the lands for E more than seven years cannot be allowed to revoke the compromise.      Mr.  Sharma   learned   counsel   appearing   for   the respondents raised the following contentions before us:           (1)  that the  appellants never  pleaded any  oral                family arrangement;           (2)  that the  family arrangement  relied upon  by                the appellants  was not  bona  fide  and  was                fraudulent as  the on sent of respondents 4 &                5 was obtained by fraud or‘ undue influence;           (3)  that  the   appellants  themselves   gave   a                complete go  bye to the family arrangement in

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              the case  which  they  made  out  before  the                Revenue  Courts   and   have   merely   taken                advantage of  a stray observation made by the                Deputy Director of Consolidation;           (4)  that  the  petition  filed  before  the  Naib                Tahsildar embodied  and as such the terms and                conditions of the compromise was compulsorily                registrable under  the Registration  Act, and                being unregistered  it  was  inadmissible  in                evidence;           (5)  that at  any rate  the family arrangement was                not proved by the appellants as a fact; 208           (6)  that the doctrine of estoppel would not apply                because   the    family   arrangement   being                compulsorily  registrable  there  can  be  no                estoppel against the statute; and           (7)  that the findings of the Revenue Courts being                essentially  findings  of  fact,  this  Court                would  not  interfere,  unless  there  was  a                sufficient error  of law apparent on the face                of the record.      Before dealing  with  the  respective  contentions  put forward by  the parties, we would like to discuss in general the effect  and value  of family  arrangements entered  into between the  parties with  a view to resolving disputes once for all.  By virtue  of a  family settlement  or arrangement members of  a family  descending from a common ancestor or a near relation  seek to  sink their differences and disputes, settle and  resolve their  conflicting  claims  or  disputed titles once  for all in order to buy peace of mind and bring about complete  harmony and  goodwill  in  the  family.  The family  arrangements   are  governed  by  a  special  equity peculiar to  themselves and  would be  enforced if  honestly made. In  this connection,  Kerr in  his  valuable  treatise "Kerr on  Fraud" at  p. 364  makes the  following  pertinent observations regarding  the nature of the family arrangement which may be extracted thus;           "The  principles   which  apply  to  the  case  of      ordinary compromise  between strangers,  do not equally      apply to  the case  of compromises  in  the  nature  of      family arrangements.  Family arrangements  are governed      by a special equity peculiar to themselves, and will be      enforced if  honesty made,  although they have not been      meant as a compromise, but have proceeded from an error      of all  parties, originating in mistake or ignorance of      fact as  to that  their rights  actually are, or of the      points On which their rights actually depend." The object  of the arrangement is to protect the family from long drawn  litigation cr  perpetual strifes  which mar  the unity and solidarity of the family and create hatred and bad blood between  the various members of the family. Today when we are  striving to  build up an egalitarian society and are trying for  a complete  reconstruction of  the  society,  to maintain and  uphold the unity and homogeneity of the family which ultimately  results in  the unification of the society and, therefore,  of the entire country, is the prime need of the hour.  A family  arrangement by  which the  property  is equitably divided  between the  various contenders  so as to achieve  an   equal  distribution   of  wealth   instead  of concentrating the  same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the  term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of

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antecedent title,  a semblance  of a  claim or  even if they have a  spes successions  so that future disputes are sealed for ever  and the family instead of fighting claims inter se and wasting  time, money  and energy  on such  fruitless  or futile litigation  is able  to devote  its attention to more constructive work in the larger 209 interest of  the country. The Courts have, therefore, leaned in favour  of upholding  a  family  arrangement  instead  of disturbing the  same on  technical or trivial grounds. Where the Courts  find that  the family arrangement suffers from a legal lacuna  or a  formal defect  the rule  of estoppel  is pressed into  service and is applied to shut out plea of the person who  being a  party to  family arrangement  seeks  to unsettle a  settled dispute  and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The  law in  England on  this point  is almost the same. In Halsbury’s Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of  the  family  settlement  and  the  principles governing the existence of the same are made:           "A family  arrangement  is  an  agreement  between      members of  the same  family, intended  to be generally      and reasonably  for the benefit of the family either by      compromising  doubtful   or  disputed   rights  or   by      preserving  the   family  property  or  the  peace  and      security   of the  family by  avoiding litigation or by      saving-its honour.           The agreement  may be  implied from a long course.      Of dealing,  but it  is more  usual  to  embody  or  to      effectuate the  agreement in  a deed  to which the term      "family arrangement" is applied.           Family arrangements  are  governed  by  principles      which are not applicable to dealings between strangers.      The court,  when deciding  the rights  of parties under      family   arrangements   or   claims   to   upset   such      arrangements, considers  what in  the broadest  view of      the matter  is most  for the  interest of families, and      has regard  to considerations  which  in  dealing  with      transactions between  persons not  members of  the same      family, would  not be taken into account. Matters which      would be  fatal to the validity of similar transactions      between strangers  are not  objections- to  the binding      effect of family arrangements".      In other  words to  put  the  binding  effect  and  the essentials of a family settlement in a concretised form, the matter may  be  reduced  into  the  form  of  the  following propositions:           (1)  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;           (2)  The said  settlement must  be  voluntary  and                should not  be induced  by fraud, coercion or                undue influence:           (3)  The family  arrangement may  be even  oral in                which case no registration is necessary;           (4)  It is well-settled that registration would be                necessary only  if the  terms of  the  family                arrangement are 210                reduced   into    writing.   Here   also,   a                distinction should be made between a document                containing the terms and recitals of a family

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              arrangement made  under the  document  and  a                mere memorandum  pre pared  after the  family                arrangement had  already been made either for                the purpose of the record or for in formation                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 therefore does not fall within                the mischief  of s. 17(2) of the Registration                Act  and   is,  therefore,  not  compulsorily                registrable;           (5)  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 ’It 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  9 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;           (6)  Even  if   bona  fide  disputes,  present  or                possible, which  may not involve legal claims                are settled by a bona fide family arrangement                which  is   fair  and  equitable  the  family                arrangement  is  final  and  binding  on  the                parties to the settlement.      The  principles   indicated  above  have  been  clearly enunciated and  adroitly adumbrated  in  a  long  course  of decisions of  this Court  as also those of the Privy Council and other High Courts, which we shall discuss presently.      In Lala  Khunni Lal  & Ors.  v. Kunwar  Gobind  Krishna Narain and  Anr.(1)  the  statement  of  law  regarding  the essentials of  a valid  settlement was  fully approved of by their Lordships of the Privy Council. In this connection the High Court  made the  following observations  ,  which  were adopted by the Privy Council:      The learned judges say as follows:           "The true  character of the transaction appears to      us to  have  been  a  settlement  between  the  several      members of  the family  of  their  disputes,  each  one      relinquishing all  claim in  respect of all property in      dispute other  than that  falling  to  his  share,  and      recognizing  the  right  of  the  others  as  they  had      previously asserted  it to the portion allotted to them      respectively. It  was in  this light,  rather  than  as      conferring -  a new  distinct title on each other, that      the  parties  themselves  seem  to  have  regarded  the      arrangement, and we think that      (1) L. R. 38 T. A. 87. 102. 211      it is  the duty  of the  Courts to uphold and give full      effect to such an arrangement."      Their Lordships  have no  hesitation in  adopting  that view." This decision  was fully endorsed by a later decision of the Privy Council  in Mt.  Hiran Bibi  and others  v. Mt.  Sohan Bipi(1).      In Sahu  Madho Das  and others v. Pandit Mukand Ram and another(2) this Court appears to have amplified the doctrine of validity  of  the  family  arrangement  to  the  farthest

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possible extent,  where Bose,  J., speaking  for the  Court, observed as follows:           "It is  well settled  that  compromise  or  family      arrangement is based on the assumption that there is an      antecedent title  of some  sort in  the parties and the      agreement acknowledges  and defines what that title is,      each party  relinquishing all  claims to property other      than that  falling to  his share  and  recognising  the      right of  the others,  as they  had previously asserted      it, to the portions allotted to them respectively. That      explains why  no conveyance  is required in these cases      to pass  the title  from the  one in whom it resides to      the person  receiving it  under the family arrangement.      It is  assumed that  the title  claimed by  the  person      receiving the  property ‘,  under the  arrangement  had      always resided  in him  or her  so far  as the property      falling to  his or her share is concerned and therefore      no conveyance  is necessary.  But, in  our opinion, the      principle can be carried further and so strongly do the      Courts lean in favour of family arrangements that bring      about harmony in a family and do justice to its various      members- and  avoid in  anticipation,  future  disputes      which might ruin them all, and we have no hesitation in      taking the  next step.  (fraud apart)  and upholding an      arrangement   under which.  One set of members abandons      all  claim  to  all  title  and  interest  in  all  the      properties in  dispute and  acknowledges that  the sole      and absolute  title to  all the  properties resides  in      only one  of their  number  (provided  he  or  she  had      claimed the  whole and made such an assertion of title)      and are content to take such properties as are assigned      to their  shares as  gifts pure and, simple from him or      her,  or   as  a   conveyance  for  consideration  when      consideration is present."      In Ram  Charan. DAS  v. Girjanandini  Devi &  Ors. (3), this Court observed as follows:           "Courts give  effect to  a family settlement upon      the broad  " and  general ground  that its object is to      settle existing  or future  disputes regarding property      amongst members  of a  family. The word ’family’ in the      content is  not to  be under stood in a narrow sense of      being a  group of  persons who are recognised in law as      having a right of succession or      (1) A.I.R. 1914 P.C.44.  (2) [1955] 2 S.C.R. 22, 42-43.      (3) [1965] 3 S.C.R. 841, 850-851. 212      having a claim to a share in the property in dispute. .      . . . . . . The consideration for such a settlement, if      one may put it that way, is the expectation that such a      settlement will  result  in  establishing  or  ensuring      amity and goodwill amongst persons bearing relationship      with one another. That consideration having been passed      by each  of the disputants the settlement consisting of      recognition of  the right asserted by each other cannot      be permitted to be impeached thereafter."      In  Tek   Bahadur  Bhujil  v.  Debi  Singh  Bhujil  and others(1) it  was pointed  out by  this Court  that a family arrangement  could   be  arrived   4  at   even  orally  and registration would  be required  only if it was reduced into writing. It  was also held that a document which was no more than a  memorandum of  what had  been agreed  , to  did  not require registration. This Court had observed thus:           "Family arrangement  as such  can be  arrived  at      orally. Its  terms may  be recorded  in  writing  as  a      memorandum of  what had  been agreed  upon between  the

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    parties. The  memorandum need  not be  prepared for the      purpose of  being used  as a  document on  which future      title of the parties be founded. It is usually prepared      as a  record of what had been agreed upon so that there      be no  hazy notions about it in future. It is only when      the parties  reduce the  family arrangement  in writing      with the purpose of using that writing as proof of what      they had arranged and, where the arrangement is brought      about by  the document as such, that the document would      require registration  as it  is then that it would be a      document of title declaring for future what rights f in      what properties the parties possess."      Similarly  in   Maturi  Pullaiah  and  Anr.  v.  Maturi Narasimham and ors.(2) it was held that even if there was no conflict of  legal claims but the settlement was a bona fide one it  could be  sustained by  the Court.  Similarly it has also held that even the disputes based upon ignorance of the parties as  to their  rights were  sufficient to sustain the family arrangement.  In this  connection this Court observed as follows: -           "It will  be seen  from the  said passage  that  a      family arrangement  resolves family  disputes, and that      even disputes   based  upon ignorance  of parties as to      their rights may afford  a sufficient ground to sustain      it.          *          *           *          *          *           Briefly stated, though conflict of legal claims in      praesenti or in future is generally a condition for the      validity of a family arrangement, it is not necessarily      so. Even  bona fide   disputes,  present  or  possible,      which  may  not  involve  legal  claims  will  suffice.      Members of  a joint Hindu family may, to maintain peace      or to bring about harmony in the family,      (1) A.I.R. 1966 S.C. 292, 295.     (2) A.I.R. 1966 S.C.                                                        1836. 213      enter into  such  a  family  arrangement.  If  such  an      arrangement is  entered into  bona fide  and the  terms      thereof are  fair in  the circumstances of a particular      case, Courts  ‘will .  more readily give assent to such      an arrangement than to avoid it."      In Krishna Biharilal v. Gulabchand and others(1) it was pointed  out   that  the  word  ’family’  had  a  very  wide connotation and  could not  be confined  only to  a group of persons who  were recognised  by law  as having  a right  of succession or  claiming to  have a  share.  The  Court  then observed:           "To consider a settlement as a family arrangement,      it is  not necessary that the parties to the compromise      should all  , belong to one family. As observed by this      Court in  Ram  Charan  Das  v.  Girjanandini  Devi  and      ors.[1965] 3 SCR 841 at pp. 850 & 851-the word "family"      in the  context of  a family  arrangement is  not to be      understood in  a narrow  sense  of  being  a  group  of      persons who  are recognised in law as having a right of      succession or having a claim to a share in the property      in dispute.  If the  dispute which  is settled  is  one      between near  relations then  the settlement  of such a      dispute can  be considered  as a family arrangement see      Ramcharan Das’s case.           The courts  lean  strongly  in  favour  of  family      arrangements to  bring about harmony in a family and do      Justice  to   its  various   members   and   avoid   in      anticipation future  disputes  which  might  ruin  them      all."

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    In a  recent decision  of this  Court in  S.  Shanmugam Pillai and  others v.  K. Shanmugam  Pillai &  others(2) the entire case  law was  discussed and  the Court  observed  as follows:           "If in  the interest  of the  family properties or      family peace  the close  relations  had  settled  their      disputes amicably,  this Court  will  be  reluctant  to      disturb the  same. The  courts generally lean in favour      of family arrangements.         *           *              *               *           Now turning  to the plea of family arrangement, as      observed by  this Court  in Sahu Madho Das and others v      Pandit Mukand  Ram and  Another [1955]  2  SCR  22  the      courts lean  strongly in  favour of family arrangements      that bring  about harmony in a family and do justice to      its various  members and avoid, in anticipation, future      disputes which might ruin them all. As observed in that      case the  family arrangement  can as a matter of law be      inferred from  a long  course of  dealings between  the      parties.           In  Maturi   Pullaiah  and   Another   v.   Maturi      Narasimham and Others- AIR 1966 SC 1836 this Court held      that although  conflict of legal claims in praesenti or      in future is      (1) [1971] Supp. SCR 27, 34.      (2) [1973] 2 SCC 312. 214      generally  condition   for  the   validity  of   family      arrangements, it  is not necessarily so. Even bona fide      dispute 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 agreement is entered into bona      fide  and   the  terms   thereto  are   fair   in   the      circumstances of  a particular  case, the  courts would      more readily  give assent  to such an agreement than to      avoid it."      Thus it  would appear  from a  review of  the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it  and maintain it. The central idea in the  approach made by the Courts is that if by consent of parties a  matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds.      A full bench of the Allahabad High Court in Ramgopal v. Tulshi Ram  and another(1)  has also  taken the  view that a family arrangement  could be oral and if it is followed by a petition in  Court containing a reference to the arrangement and if  the purpose was merely to inform the Court regarding the arrangement,  no registration  was  necessary.  In  this connection  the   full  bench   adumbrated   the   following propositions in answering the reference:      "    We would,  therefore return  the reference  with a      statement of the following general propositions:      With reference to the first question:      (1) A family arrangement can be made orally.      (2)  If  made  orally,  there  being  no  document,  no      question of registration arises.      With reference to the second question:           (3)If though  it could  have been  made orally, it      was in  fact reduced  to  the  form  of  a  "document",      registration (when the value is Rs. 100 and upwards) is      necessary.           (4) Whether  the terms  have been  "reduced to the

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    form of  a document" is a question of fact in each case      to be determined upon a consideration of the nature and      phraseology of  the writing  and the  circumstances  in      which and the purpose with which it was written.          (5) If  the terms were not "reduced to the form of      a  document",  registration  was  not  necessary  (even      though the value is Rs. 100 or upwards); and, while the      writing cannot  be used as a piece of evidence for what      it  may  be  worth,  e.g.  as  corroborative  of  other      evidence or  as an  admission of  the transaction or as      showing or explaining conduct.      (1) AIR 1928 All. 641, 649. 215           (6) If  the terms  were "reduced  to the form of a      document" and, though the value was Rs. 100 or upwards,      it was  not registered,  the  absence  of  registration      makes the  document inadmissible  in  evidence  and  is      fatal to  proof of  the  arrangement  embodied  in  the      document."      Similarly in  Sitala Baksh  Singh and  others  v.  Jang Bahadur Singh and other (1) it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue  Court   did  not   require  registration.  In  this connection the following observations ’ were made:           "In view of this statement in para 5 of the plaint      it is  hardly open  to the  plaintiffs now to urge that      Ex. 1, the com promise, required registration when they      themselves admit  that it  was embodied  in an order of      the Revenue  Court and  that it  was given effect to by      the Revenue  Court ordering mutation in accordance with      the terms  of the  compromise. *  * * * We hold that as      the Revenue Court by its proceeding gave effect to this      compromise, the  proceedings and  orders of the Revenue      Court did not require registration." Similarly in  a later  decision of  the same  Court in  Mst. Kalawati v.  Sri  Krlshna  Prasad  and  others  (2)  it  was observed as follows:           "Applying this meaning to the facts of the present      case, it  seems to  us that  the order  of the mutation      court merely  stated the fact of the compromise  having      been arrived  at between the parties and did not amount      to a  declaration of  will. The  order itself  did  not      cause a  change of  legal relation  to the property and      therefore  it   did  not   declare  any  right  in  the      property."      The same  view was taken in Bakhtawar v. Sunder Lal and others(3), where  Lindsay, J.,  speaking  for  the  Division Bench observed as follows:           "It is  reasonable to assume that there was a bona      fide dispute  between the  parties which was eventually      composed each  party recognizing an antecedent title in      the other.  I this  view of  the circumstances  I am of      opinion that  there  was  no  necessity  to  have  this      petition registered.  It does not in my opinion purpose      to create,  assign, limit, extinguish or declare within      the meaning of these expressions as used in S. 17(1)(b)      of the Registration Act. It is merely a recital of fact      by which  the Court  is informed  that the parties have      come to an arrangement."      Similarly the  Patna High  Court in  Awadh Narain Singh and others v. Narain Mishra and others(4) pointed out that a compromise petition not embodying any terms of agreement but merely conveying  in formation  to  the  Court  that  family arrangement had already been      (1) A.I.R 1933 Oudh 347, 348-349.         (2) I.L.R. 19

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                                            Lucknow 57, 67.      (3) A.I.R. 1926 All. 173. 175.       (4) AIR 1962 Patna                                                         400. 15-390SCI/76 216 arrived at  between the parties did not require registration and can  be looked into for ascertaining the terms of family arrangement. This is what actually seems to have happened in the present  case when the mutation petition was made before the Assistant Commissioner.      This Court  has also  clearly laid  down that  a family arrangement being  binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who  have taken  advantage under  the agreement from revoking or  challenging the  same. We  shall deal with this point a  little later  when we consider the arguments of the respondents on the question of the estoppel. In the light of the decisions indicated above, we shall now try to apply the principles laid  down by  this Court and the other Courts to the facts of the present case.      It would  be seen that when the name of appellant No. 1 Kale was  mutated in  respect of  the  Khatas  by  the  Naib Tehsildar by  his order  dated December  5,  1955  which  is mentioned at  p. 4 of the Paper Book respondents 4 & 5 filed an application  for setting  aside that  order on the ground that they  had no knowledge of the proceedings. Subsequently a  compromise   was  entered  into  between  the  parties  a reference to which was made in the compromise petition filed before the  Revenue Court  on August  7, 1956.  A perusal of this compromise  petition which  appears at  pp. 15 to 18 of the Paper  Book would  clearly show  two things-(1) that the petition clearly  and explicitly mentioned that a compromise had already  been made  earlier,  and  (2)  that  after  the allotment of  the  Khatas  to  the  respective  parties  the parties shall be permanent owners thereof. The opening words of the petition may be extracted thus:           "It  is   submitted  that  in  the  above  suit  a      compromise has been made mutually between the parties." It  would   appear  from   the  order   of   the   Assistant Commissioner, 1st  Class, being  Annexure 4 in Writ Petition before the  High Court, appearing at p. 19 of the Paper Book that the  parties sought  adjournment from  the Court on the ground that  a compromise was being made. In this connection the Assistant Commissioner, Ist Class, observed as follows:           "On 11th January 1956 Mst. Har Piari and Ram Piari      gave an  application for  restoration in  the court  of      Naib  Tahsildar  on  the  ground  that  they  were  not      informed of  the case  and they  were aggrieved  of his      order passed  on 5th December 1955. On this application      he summoned  the parties  and an  objection  was  filed      against the restoration application. The parties sought      adjournment on  the ground  that a compromise was being      made.           The  parties  filed  compromise  before  the  Naib      Tehsildar according  to which two lists were drawn, one      of these  is to be entered in the name of. Kale and the      other in the name of Har Piari and Ram Piari." This shows  that even  before the  petition was filed before the Assistant  commissioner informing  him that a compromise was being made, The 217 parties had  a clear  compromise or  a family arrangement in contemplation for  which purpose  an adjournment  was taken. These facts  coupled together  unmistakably  show  that  the compromise or  family  arrangement  must  have  taken  place

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orally before  the petition  was filed  before the Assistant Commissioner for  mutation of  the names  of the  parties in pursuance of  the compromise.  The facts of the present case are ’‘  therefore clearly covered by the authorities of this Court and  the other  , . High Courts which laid down that a document which  is in  the nature  of  a  memorandum  of  an earlier family  arrangement and  which is  filed before  the Court for  its information  for mutation  of  names  is  not compulsorily  registrable   and  therefor  can  be  used  in evidence of  the family arrangement and is final and binding on  the   parties.  The  Deputy  Director  of  Consolidation respondent No.  1 as  also the  High Court were,  therefore, wrong in taking the view that in absence of registration the family arrangement  could not be sustained. We might mention here that in taking this view, the High Court     of Allahabad completely  over looked its own previous decisions on this  point which  were definitely  binding on  it. This, therefore, disposes  of the  first contention of the learned counsel for  the respondents  that as the family arrangement having been  reduced into  the form  of a document which was presented before the Assistant Commissioner was unregistered it  is   not  admissible   and  should   be  excluded   from consideration.      It was  then contended  by  the  respondents  that  the family arrangement was not bona fide for two reasons:           (1)  that  it  sought  to  give  property  to  the      appellant No.  1 Kale  who was  not a legal heir to the      estate of  Lachman, because  in view  of the  U.P. Land      Reforms (Amendment)  Act 20 of 1954 Mst. Ram Piari even      after being married could ? retain the property, and so      long as  she was  there the appellant had no right; and      -           (2) that  the family arrangement was brought about      by fraud or undue influence.      As regards  the first  point it  appears to  us  to  be wholly untenable  in law.  From the principles enunciated by us and  the case law discussed above, it is absolutely clear that the word ’family’ cannot he construed in a narrow sense so as  to confine the parties to the family arrangement only to persons  who have  a legal title to the property. Even so it cannot  be disputed  that the  appellant Kale  being  the grand son of Lachman and therefore a reversioner at the time when the  talks for compromise‘ took place was undoubtedly a prospective heir  and also  a member  of the  family.  Since respondents 4  & 5  relinquished   their claims in favour of the appellant  Kale in  respect  of  Khatas  5  &  90    the appellant, according  to the  authorities  mentioned  above, would  be   deemed  to   have  antecedent  title  which  was acknowledged by  respondents 4 & 5. Apart from this there is one more  important consideration , which clearly shows that the  family   arrangement  was   undoubtedly  a   bona  fide settlement of  disputes. Under  the  family  arrangement  as referred to  in the  mutation petition the respondents 4 & 5 were given  absolute and  permanent rights  in the  lands in dispute. In  1955 when  the compromise  is alleged  to  have taken place the Hindu Succession 218 Act, 1956,  was not  passed and respondents 4 & 5 would have only a  limited interest  even if  they had  got the  entire property which  would ultimately  pass to the appellant Kale after their  death. The  respondents 4  & 5  thought that it would be  a good  bargain  if  by  dividing  the  properties equally they could retain part of the properties as absolute owners. At  that time  they did  not  know  that  the  Hindu Succession p Act would be passed a few months later. Finally

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the compromise  sought to  divide the properties between the children of  Lachman, namely,  his  two  daughters  and  his daughter’s son  the appellant  Kale in equal shares and was, therefore, both fair and equitable. In fact if respondents 4 & 5  would have  got all  the lands  the total area of which would be  somewhere about  39 acres  they might have to give away a  substantial portion  in view  of the ceiling law. We have, therefore  to see  the  circumstances  prevailing  not after the  order of the Assistant Commissioner was passed on the mutation  petition but  at the time when the parties sat down together  to iron  out their differences. Having regard to the  circumstances indicated above, we cannot conceive of a "  more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances  therefore, it  cannot be  said that the family settlement was not bona fide Moreover respondents 4 & 5 had at no stage raised the issue before the Revenue Courts or even  before the  High Court  that the settlement was not bona fide. The High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions  of law  or that  it was not registered although  it   should  have   been  registered   under   the Registration Act.      There is  yet one  more  intrinsic  circumstance  which shows that  the  compromise  was  an  absolutely  bona  fide transaction. It  would  appear  that  at  the  time  of  the compromise respondent 5 Ram Pyari was faced with a situation when her  marriage in 1955 was not so far proved. If she was absolutely certain that her marriage had taken place in 1955 she would  not have agreed to the terms at all. On the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had  married  before  1955  then  she  would  be  completely disinherited and  would get  nothing at  all with the result that the  appellant Kale  would get  the entire property. on the other  hand the  appellant must  have similarly  thought that a bird in hand is worth two in the bush. So long as Ram Pyari was  alive he  would not be able to enjoy the property and would  have to  wait till  her death. It was, therefore, better to  take  half  of  the  property  immediately  as  a permanent tenure  holder and  give the half to the daughters of Lachman,  namely, Har Pyari and Ram Pyari. Thus under the terms of  the compromise  both the parties got substantial . benefits and  it was  on the whole a very fair and equitable bargain. In  these  circumstances,  therefore,  the  parties struck a  just balance  and fair  and beneficial  settlement which put an end to their disputes.      Coming to the second plank of attack against the family settlement that  it was  brought about  by duress  or  undue influence or  fraud, there  is not  an iota of evidence or a whisper of  an allegation by respondents 4 & 5 either in the Revenue Courts  or in the High Court. Even before respondent No. 1, where respondents 4 & 5 were the petitioners l, 219 they never  questioned the  compromise on the ground that it was fraudulent  on a  point of fact. It is well settled that allegations of  fraud or  undue influence must first clearly be pleaded  and then  proved by  clear and  cogent evidence. There was  neither  pleading  nor  proof  of  this  fact  by respondent 4 & 5. Moreover, it may be mentioned that even in their  objections  before  the  Assistant  Commissioner  for setting aside  the previous  mutation made  in favour of the appellant Kale  the only ground taken by the respondents 4 & 5 was  that the  order was  passed without  their knowledge. Lastly the  petition filed before the Assistant Commissioner

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for mutating  the lands  in pursuance  of the compromise was signed by  both the  parties who were major and who knew the consequences thereof. In these circumstances, therefore, the argument of the learned counsel for the respondents that the compromise was fraudulent appears to be a pure after-thought and is not at all justified by any evidence. This contention must therefore be overruled.      It was  also suggested  by Mr.  Sharma that  before the Revenue Courts the appellant Kale tried to show by producing a false  Kutumb Register that respondent No. 5 Ram Pyari was married before 1955 so that being a married daughter she may be deprived  of her inheritance and the Revenue Courts found that this  register was  not proved  to  be  genuine.  This, however, does  not amount to a plea of fraud but is a matter of evidence.  On the  other hand  even the respondents 4 & 5 had taken  the stand  before the  Revenue Courts  when  they filed  their  joint  written  statement  in  1965  that  the appellant was  not the grandson of Lachman a fact which they admitted clearly  before the  Panchayat Adalt as also before the Assistant  Commissioner when  they  filed  the  mutation petition. The Revenue Courts clearly held that this plea was totally unfounded  and was  completely disproved.  thus even assuming the  argument of  Mr. Sharma  to be  correct,  both parties being  in pari delicto none of them could be allowed to take  advantage of  their wrong. In fact Mr. Garg counsel for the  appellants was fair enough to give up this plea and clearly conceded before the High Court as also in this Court that Musamat  Ram Pyari  was married in 1955 as found by the Revenue Courts.      Another contention  that  was  advanced  before  us  by counsel  for   the  respondents  was  that  an  oral  family arrangement was  never pleaded before the Revenue Courts and that the  appellants relied  mainly on the mutation petition as embodying  the terms and conditions of the compromise. In our opinion  this contention, apart from being untenable, is not factually  correct. The  disputes between  the appellant Kale and  respondents 4  &  5  arose  only  after  the  Naib Tehsildar had,  on the application of the appellant, mutated his name  in respect  of the  Khata Numbers  in dispute.  An application was filed by respondents 4 & 5 for setting aside that  order.   Thereafter  both  the  parties,  namely,  the appellant and  respondents 4  & 5  obtained adjournment from the Court  on the  ground that they were going to compromise the dispute.  Subsequently the  mutation petition  was filed which was  signed by both the parties. In the Revenue Courts therefore it  was the  mutation petition  alone which formed the pleadings  of the  parties and  therefore it was obvious that the family arrangement was pleaded by 220 the appellant  at the  first possible opportunity The family arrangement was  again relied  upon before the Consolidation officer in  Annexure-5 to  the writ  petition  the  relevant portion which  appears at  p. 25  of the Paper Book and runs thus:           The parties  contested the  suit in the panchayat.      They  contested   it  in  tahsil  also.  The  plaintiff      produced a  copy thereof.  He  produced  a  copy  of  a      compromise in which the defendant gave half of the land      to Kale, treating him as dheota of Lachman, although no      party now remembers about that compromise." In the  final Revenue  Court i.e.,  before the  Director  of Consideration as  also before  the High Court the compromise was very  much relied  upon by  the appellant  and a finding against the appellant was given both by respondent No. 1 and by the  High Court as a result of which this appeal has been

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filed before this Court. It was suggested by the respondents that Respondent No. 1 had merely made a stray observation in his order.  This does  not appear  to  be  correct,  because respondent No.  1  has  proceeded  on  the  footing  that  a compromise was  there but it could not be given legal effect because it  contravened some  provisions of the law. In this connection the order of respondent No. 1 reads thus:           "Even  the   orders   passed   in   the   mutation      proceedings  on  the  basis  of  compromise  could  not      maintain as  since the  mutation  proceedings  were  of      summary nature and the com promise of the parties, even      if accepted,  was against  the pro  visions of  law, as      either Smt. Ram Pyari could succeed or Kale alone could      be deemed to be the successor of Lachman, the last male      tenant. There  was no  question  of  both  the  parties      sharing the  land in  between them  on the  basis of  a      compromise made against the provisions of law." Respondent No.  1 also  indicated  in  his  order  that  the compromise had  taken place  before the  Naib  Tehsildar  as alleged by  the appellant.  Lastly both the Single Judge and the Division  Bench also  have proceeded  on the  basis that there was  in fact a compromise between the parties but have refused to  give effect.  to the compromise because the same was not  registered. In  these circumstances, therefore, the contention of  the respondents 4 and 5 on this score must be overruled.      It was  then argued that the appellants have adduced no evidence  to   prove  that   there  was  actually  a  family arrangement between  the parties. We are, however, unable to agree  with   thus  contention   There  are  four  important circumstances from  which  the  family  arrangement  can  be easily inferred. These are;           (1)  that the  parties took  adjournment from  the                Court intimating  to it that a compromise was                under contemplation;           (2)  that a petition for mutation was filed before                the Court  of Assistant  Commissioner clearly                alleging that  a  com  promise  or  a  family                arrangement had  already taken place and that                mutation should be made accordingly; 221      (3)  that in  pursuance  of  the  compromise  both  the           parties  A   took  benefit   under  the  same  and           continued  to   remain  in   possession   of   the           properties allotted  to them  for full seven years           and did  not raise  any  objection  at  any  stage           before any  authority during this period regarding           the validity of the compromise; and      (4)  that  even   though  the   U.P.  Consolidation  of           Holdings Act,  1953 contained an express provision           for filing of an objection under s. 9 (2) when the           proceedings for  correction of  the  entries  were           taken  respondents   4  &  5  filed  no  objection           whatsoever  and  filed  their  additional  written           statement at a much later stage. Thus from  the actings  and dealings  of the  parties in the course of  several years a family arrangement can clearly be inferred in this case.      Finally the respondents never took any objection before any of the Courts that no family arrangement had as a matter of fact  taken place between the parties. The only objection centered round  the admissibility  of the  document said  to have embodied  the terms of the compromise. This contention, therefore, cannot be accepted.      It was then submitted that even the appellant had given

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a go  bye to  the compromise and seems to have forgotten all about it.  This is  also factually  incorrect. As  indicated earlier right  from the  Court of  the Consolidation officer upto the  High Court  the appellant  has always been relying mainly on the compromise entered into between the parties.      Another  argument   advanced   by   counsel   for   the respondents was  that the  family arrangement  was not valid because  the  appellant  had  absolutely  no  title  to  the property so  long as Mst. Ram Pyari was in lawful possession of the  property as  the sole  heir to Lachman, and if under the  family  arrangement  any  title  was  conveyed  to  the appellant, the  said conveyance  can only be by a registered instrument under  the provisions of the Registration Act and the Transfer  of Property  Act. This  argument also,  in our opinion, suffers  from  a  serious  misconception.  We  have already pointed  out that this Court has widened the concept of an  antecedent title  by holding that an antecedent title would be  assumed in a person who may not have any title but who has  been allotted  a particular property by other party to the  family arrangement  by relinquishing  his  claim  in favour of  such a  done. In  such a  case the party in whose favour the  relinquishment is  made would be assumed to have an antecedent title. In fact a similar argument was advanced before this  Court in  Tek Bahadur  Bhujil’s  case,  (supra) relying on  certain observations  made by  Bose, J., in Sahu Madho Das’s  case, (supra) but the argument was repelled and this Court observed as follows: -           "Reliance is placed on the following in support of      the contention  that the  brothers, having  no right in      the property  purchased by  the mother’s’  money, could      not have legally entered into a family arrangement. The      observations’ are:           It is  well settled  that a  compromise or  family      arrangement is based on the assumption that there is an      antecedent 222      title of  some sort  in the  parties and  the agreement      acknowledges and defines what that title is, each party      relinquishing all  claims to  property other  than that      falling to  his share  and recognizing the right of the      others, as  they had  previously  asserted  it  to  the      portions allotted to them respectively.      "These observations  do not  mean that  some title must      exist as  a fact  in the persons entering into a family      arrangement. They  simply mean that it is to be assumed      that the r parties to the arrangement had an antecedent      title of  some sort and that the agreement clinches and      defines what that title is." The observations  of this  Court in  that  case,  therefore, afford complete  answer  to  the  argument  of  the  learned counsel for the respondents on this point.      Furthermore the  Privy Council  in  somewhat  identical circumstances P  upheld the  family settlement  in  Ramgouda Annagouda &  others v. Bhausaheb and others(1). In that case there were  three parties  to the  settlement of  a  dispute concerning the  property of  the deceased person. These were the widow  of the deceased, the brother of the widow and the son-in-law of  the widow. It was obvious, therefore, that in presence of the widow neither her brother nor her son-in-law could be  regarded as  the legal  heirs of the deceased. Yet having regard to the near relationship which the brother and the son-in-law bore to the widow the Privy Council held that the family  settlement by  which the properties were divided between these  three parties was a valid one. In the instant case also  putting the  case of  respondents 4  & 5  at  the

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highest,  the  position  is  that  Lachman  died  leaving  a grandson and  two daughters.  Assuming that the grandson had no legal  title, so  long as the daughters were there, still as the  settlement was  made to  end  the  disputes  and  to benefit all  the near  relations of  the family, it would be sustained as  a valid  and binding family settlement. In the instant case  also it  would appear  that the appellant Kale and Mst.  Har  Piari  had  no  subsisting  interest  in  the property so  long as  Mst. Ram Piari was alive. Ram Piari in view of  the amendment  in law  by  the  U.P.  Land  Reforms (Amendment) Act,  20 of  1954, continued  to be an heir even after her  marriage but Mst. Har Piari ceased to be the heir after  her   marriage  which  had  taken  place  before  the amendment. Nevertheless  the three  children of  Lachman  in order to  bring complete harmony to the family and to put an end to  all future  disputes decided  to divide the property each getting  a share  in the  same. The  appellant Kale got Khatas Nos.  5 &  90 and  Mst. Har  Pari’s share  was placed along with  Mst. Ram  Piari in  the other  Khatas. This  the appellant and  Har Piari  &  Ram  Piari  also  enjoyed  full benevolence under the family arrangement. We cannot think of a fairer  arrangement  than  this  by  which  not  only  the property was  divided amongst  the children  of Lachman  but even the  spirit of  the law,  which wiped out the invidious distinction between  the married  and unmarried daughters by the U.P.  Act 20  of 1954,  was followed.  The facts  of the present case, therefore, as we have already indicated, are      (1) L.R. 54 I.A. 396. 223 on all  fours with  the facts  in Ramgouda  Annagouda’s case (supra).    The  Privy  Council  further  held  in  Ramgouda Annagouda’s case  that Ramgouda  being a party to benefit by the transaction  was precluded  from questioning any part of it. On a parity of reasoning, therefore, the respondents 4 & 5 who were parties to the family arrangement and having been benefited thereunder  would be  precluded from assailing the same. For  these reasons,  therefore, the  contention of the learned counsel  for the respondents on this point also must be over- ruled.      We might  mention here that the learned counsel for the respondents relied  on two decisions of the Patna High Court in Brahmanath Singh Ors. v. Chandrakali Kuer and another (1) and Mst.  Bibi Aziman  and another v. Mst. Saleha and others (2) for  the proposition that unless a party to a settlement had an  antecedent title  the family settlement would not be valid. In  view, however, of the decisions of this Court and of the  Privy Council  the authority of the Patna High Court on this point is considerably weakened and cannot be treated as a good law. The Patna High Court also held that where the document itself contains or embodies the terms of the family settlement it  will be compulsorily registrable but not when it speaks  of the  past. In  view of  our finding  that  the mutation petition  before  the  Assistant  Commissioner  was merely a memorandum of the family arrangement, the authority of the  Patna High  Court does  not  appear  to  be  of  any assistance to the respondents.      Rebutting the  arguments of the learned counsel for the appellant, Mr. Sharma for the respondents, contended that no question  of  estoppel  would  arise  in  the  instant  case inasmuch  as   if  the   document  was  to  be  compulsorily registrable there can be no estoppel against the statute. In the first  place  in  view  of  the  fact  that  the  family arrangement was  oral and  the mutation  petition was merely filed before  the Court  of the  Assistant Commissioner  for information and for mutation in pursuance of the compromise,

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the document  was not  required to be registered, therefore, the principle  that there is no estoppel against the statute does not  apply to the present case. Assuming, however, that the said  document was  compulsorily registrable  the Courts have generally  held that a family arrangement being binding on the  parties to  it  would  operate  as  an  estoppel  by preventing the  parties after  having taken  advantage under the arrangement to resile from the same or try to revoke it. This principle  has been established by several decisions of this Court  as also  of the  Privy Council. In Kanhai Lal v. Brij Lal and Anr.(3) the Privy Council applied the principle of estoppel  to the  facts  of  the  case  and  observed  as follows:-           "Kanhai Lal was a party to that compromise. He was      one of those whose claims to the family property, or to      shares  in   it,  induced  Ram  Dei,  against  her  own      interests and those of her daughter, Kirpa, and greatly      to her own detriment, to alter her position by agreeing      to  the   compromise,  and  under  that  compromise  he      obtained a substantial benefit, which he      (1) AIR 1961 Pat. 79.             (2) AIR 1963 Pat. 62.      (3) L.R. 45 I.A. 118, 124. 224      has hitherto enjoyed. In their Lordships’ opinion he is      bound by it, and cannot now claim as a reversioner.      This Court  in Dhiyan  Singh and  Anr. v. Jugal Kishore and Anr. (1) observed as follows:           "We do  not  think  the  fact  that  there  was  a      voluntary  com  promise  whereas  here  there  was  the      imposed decision  of an arbitrator makes any difference      because we  are not  proceeding on  the footing  of the      award but on the actions of the parties in accepting it      when  they  need  not  have  done  so  if  the  present      contentions. are correct.           Even if  the arbitrator  was wholly wrong and even      if the had no power to decide as he did, it was open to      both  sides   to  accept  the  decision  and  by  their      acceptance recognise the existence of facts which would      in law  give  the  other  an  absolute  estate  in  the      properties they  agreed to  divide among themselves and      did divide. That, in our opinion is a representation of      an  existing   fact  or   set  of   facts.  Each  would      consequently be  estopped  as  against  the  other  and      Brijlal in  particular would  have been  estopped  from      denying the  existence of  facts which  would give Mst.      Mohan Dei an absolute interest in the suit property." In view of the principle enunciated in the aforesaid case it is obvious  that respondents  4 &  5 would  be estopped from denying the  existence of  the family  arrangement  or  from questioning its validity.      In Ram  Charan Das’s case (supra) while dwelling on the point of  the family  arrangement  this  Court  observed  as follows:           "It  seems   to  us  abundantly  clear  that  this      document was  in substance  a familiar arrangement and,      therefore, was  binding  on  all  the  parties  to  it.      Moreover it  was acted  upon by  them. x  x x  x In our      opinion the  document on  its face  appears to effect a      compromise of the conflicting claims of Gopinath on the      one hand  and the pre sent plaintiff Ram Charan Das and      his  brothers   on  the   other  to   the   estate   of      Kanhaiyalal." At p.  851 this  Court pointed  out that  as the  settlement consisted of recognition of the right asserted by each other none of  the  parties  could  be  permitted  to  impeach  it

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thereafter.      To the  same effect  is the  decision of  this Court in Krishna Bihari  lal’s case  (supra), where  the doctrine  of estoppel was  discussed, and while referring to the previous cases of this Court, it was observed as follows:           "In Dhyan  Singh’s case -[1952] SCR 478-this Court      ruled that  even if  an  award  made  is  invalid,  the      persons who  were parties  to that  award are  estopped      from challenging the      (1) [1952] S.C.R. 478. 225      validity of the award or from going behind the award in      a subsequent  litigation. In  T. V.  R. Subbu  Chetty’s      Family Charities v. M. Raghava Mudaliar and Ors.-[1961]      3 SCR 624-this Court ruled that if a person having full      knowledge of  his  rights  as  a  possible  reversioner      enters into  a transaction  which settles  his claim as      well as the claim of the opponent at the relevant time,      he cannot  be permitted  to go back on that arrangement      when reversion  actually opens.  At the  time of  1 the      compromise Lakshmichand  and Ganeshilal  were the  near      est presumptive  reversioners. They  must be  deemed to      have  J   known  their  rights  under  law.  Under  the      compromise they purported to give a portion of the suit      properties  absolutely   to  Pattobai,   evidently   in      consideration of  her giving up her claim in respect of      the other  properties. They  cannot be now permitted to      resile  from   the  compromise   and  claim   a   right      inconsistent with the one embodied in the compromise."      Finally in  a recent  decision  of  this  Court  in  S. Shanmugam  Pillai   case   (supra)   after   an   exhaustive consideration of  the authorities  on the  subject,  it  was observed as follows:           "Equitable principles  such as estoppel, election,      family settlement, etc. are not mere technical rules of      evidence. The have an important purpose to serve in the      administration of  justice. The ultimate aim of the law      is to  secure justice.  In the recent times in order to      render justice  between the  parties, courts  have been      liberally  relying   on  those   principles.  We  would      hesitate to narrow down their scope.           As observed  by this  Court  in  T.  V.  R.  Subbu      Chetty’s Family  Charities’ case  (supra),  that  if  a      person having full knowledge of his right as a possible      reversioner enters into a transaction which settles his      claim as  well as  the claim  of the  opponents at  the      relevant time,  he cannot  be permitted  to go  back on      that agreement when reversion actually falls open." In these  circumstances there  can be  no doubt that even if the family settlement was not registered it would operate as a complete  estoppel against  respondents 4 & 5. Respondent‘ No.  1   as  also   the  High  Court,  therefore,  committed substantial error  of  law  in  not  giving  effect  to  the doctrine of  estoppel as  spelt out by this Court in so many cases.  The  learned  counsel  for  the  respondents  placed reliance- upon  a number  of authorities  in Rachcha  v. Mt. Mendha,(1) Chief  Controlling 6  Revenue Authority  v.  Smt. Satyawati Sood  and others(2)  and some  other  authorities, which, in  our opinion  have no  bearing on the issues to be decided in  this case  and it is therefore not necessary for us to refer to the same      Finally it  was contended  by the respondents that this Court should not interfere because there was no error of law in the  judgment of the High Court or that of Respondent No. 1. This argument is only stat- ed to be rejected.

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    (1) AIR 1947 All. 177.          (2) AIR 1972 Delhi 171. 226      In view  of our  finding that the family settlement did not contravene  any provision  of the  law but was a legally valid and binding settlement in accordance with the law, the view of  Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained.  Similarly the view of the High Court that the compromise required  registration was  also wrong in view of the clear  fact that  the mutation petition filed before the Assistant Commissioner  did not  embody  the  terms  of  the family arrangement  but  was  merely  in  the  nature  of  a memorandum meant  for the information of the Court. The High Court further in law in not giving effect to the doctrine of estoppel which  is always  applied whenever any party to the valid family  settlement tries  to assail  i The  High Court further erred  in not  considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose,  namely, for  the purpose of showing the nature  and   character  o  possession  of  the  parties  in pursuance of  the family  settlement and a o for the purpose of applying  the rule  of estoppel  which followed  from the conduct of  the parties  who having  taken benefit under the settlement keep  their mouths  shut for full seven years and later try to resile from the settlement. In Shyam Sunder and others v.  Siya Ram  and another  (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into  consideration as  a piece of evidence even if it was not  registered or  for that matter as an evidence of an antecedent title. The High Court observed as follows:           "The decision in Ram Gopal v. Tulshi Ram,-AIR 1928      All. 641  (FB)-is clear  that such  a  recital  can  be      relied upon as a piece of evidence.           It is clear, therefore, that the compromise can be      taken into  consideration as a piece of evidence. x x x      To sum  up, therefore,  we are  of the  view  that  the      compromise could  have been relied upon as an admission      of antecedent title."      On  a  careful  consideration  of  the  facts  and  the circumstances and the law discussed above, we are clearly of the opinion  that-the orders  of the High Court as also that of Respondent  No. 1  suffer from a substantial error of law resulting in  serious injustice  to  the  appellant  by  re- opening a  dispute which  had been  settled almost  seven to eight years  before the  proceedings for re-opening the same were started.  In not interfering to correct the clear error of law  committed by Respondent No. 1, the High Court failed to  exercise   jurisdiction  vested   in  it  by  law,  and, therefore, the  order of  the High  Court itself was legally erroneous and cannot be sustained. The contentions raised by the appellant  are well  founded and must prevail, while the contentions advanced by the respondent fail.      In  these   circumstances,  therefore,  the  appeal  is allowed, the  judgment of the High Court is set aside and by a writ  of certiorari  the order  of Respondent  No. 1 dated January 22, 1965 is hereby quashed. The      (1) AIR 1973 All. 382, 389. 227 order of  the Settlement  officer dated  November  28,  1964 which actually  gave effect  to  the  compromise  is  hereby restored and  the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 & 5  in accordance  with the family arrangement entered into between the  parties  referred  to  in  this  case.  In  the peculiar circumstances of the case there will be no order as

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to costs.      SARKARIA J.  I am  at one with my learned Brother, that this appeal  should be allowed with no order as to costs and that the  order dated  January  22,  1965  of  Respondent  1 quashed, the order dated November 28, 1964 of the Settlement officer restored,  and the  Revenue authorities  directed to attest the mutation in accordance with the antecedent family arrangement which  had been  orally arrived  at between  the parties and  acted upon  for several  years. I further agree that the  family settlement  arrived at  by the  parties was oral, and  the petition  filed by  them on  August  7,  1956 before the  Assistant Commissioner was merely an information of an  already completed  oral transaction.  In other words, the petition  was only an intimation to the Revenue court or authority that  the matters  in dispute  between the parties had been  settled amicably between the members of the family and no  longer required  determination and that the mutation be  effected  in  accordance  with  that  antecedent  family settlement. Since  the petition  did not  itself  create  or declare any rights in immovable property of the value of Rs. 100 or  upwards, it  was not  hit  by  s.  17(1)(b)  of  the Registration  Act,   and  as   such  was   not  compulsorily registrable. The rest of the reasoning in the judgment of my learned Brother  has also  my concurrence except that I will reserve  my   opinion  with   regard  to   the   alternative proposition,   whether   this   petition-assuming   it   was compulsorily  registrable   under  s.   17(1)  (b)   of  the Registration Act-could  be used to raise an estoppel against any of  the parties  hereto. Decision  of this  point, in my opinion, is unnecessary for the disposal of this case. P.B.R.                                     Appeal allowed. 228