Mahadev And Ors. Vs Sonau Ram And Ors.

All caste Satnami, occupaton-Agriculture, R/o Village Kashigarh/Mouhadih, P.S. And P.O. And Tah. Jaijaipur, Distt. Janjgir-Champa, Chhattisgarh 4 - Mayawati Wd/o Ghasiram Aged About 70 Years, Caste Satnami, R/o Village, Kashigarh/Mouhadih, P.S. And P.O. And Tah. Jaijaipur, Distt. JanjgirChampa, Chhattisgarh.

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... Appellants

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versus

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1 - Sonau Ram S/o Dharmu Aged About 60 Years

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2 - Bhaiya Ram W/o Dharmu Ram Aged About 56 Years

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Both Caste-Satnami, R/o Village Kashigarh/Mouhadih, P.S. And P.O. And Tah. Jaijaipur, Distt. Janjgir-Champa, Chhattisgarh.

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3 - Sonai Bai D/o Dharmu Aged About 60 Years Chorbhatthi, P.S. And P.O. And Tah. Jaijaipur, District : Janjgir-Champa, Chhattisgarh.

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4 - State of Chhattisgarh through Collector, Janjgir, District : Janjgir-Champa, Chhattisgarh.

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... Respondent(s)

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For Appellants : Shri H.B. Agrawal, Sr.Advocate along with Ms. A. Sandhya Rao, Advocate. For Respondent 1 to 3 : Shri Parag Kotecha, Advocate.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board

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06.11.2025

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1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the plaintiffs against the impugned judgment and decree dated 28.07.2012 passed by the Additional District Judge, Sakti District Janjgir Champa in Civil Appeal No.4-A/2008 whereby the

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First Appeal filed by plaintiffs No.2 to 4 have been dismissed and the judgment and decree dated 12.03.2008 passed by Civil Judge Class-I Link Court, Jaijaipur, District Janjgir Champa in Civil Suit No.20-A/2007 has been affirmed.

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2. For the sake of convenience, the status of the parties shown in Civil Suit are being taken in the present Second Appeal.

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3. On 12.11.2021 the appeal was admitted for hearing by the court on the following substantial questions of law:

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“1. Whether the courts below has recorded a perverse finding by treating Ex.D/2 as deed of partition dated 07.06.1982 in place of deed of exchange?

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Whether the court below was justified in recording a finding that suit is barred by limitation?”

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4. The plaintiffs filed a civil suit before the trial court for declaration of title over their 1/4th share and separate possession of the suit property total 2.25 Acre of land situated at village Kashigarh, Tehsil Jaijaipur, District Janjgir Champa and 1.06 Acre of land situated at village Aamgaon, Tehsil Jaijaipur, District Janjgir Champa, which are shown in Paragraph 2(a) and 2(b) of the plaint. They pleaded before the trial court that the suit lands are the ancestral property of parties which were recorded in the name of Dharmu. After death of Dharmu, the suit lands were recorded in the name of defendants No.1 to 3 and Ghasiram. The defendants No.1 & 2 illegally deleted the name of Ghasiram from the revenue records of suit land. When Ghasiram came to know that his name has been deleted from revenue records, he filed an appeal before the SDO(Revenue), Sakti, which was dismissed. The defendants No.1&2 have mutually partitioned the suit land and denied share to the plaintiffs whereas there was no partition between the

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members of joint family. The alleged partition dated 07.06.1982 is an unregistered deed and the same is forged and fabricated. The land of village Mauhadih, Khasra No.39 Area 1.50 Acre and Khasra No.45 area 2.15 Acre was purchased by Mayamati on 25.06.1976 through registered sale deed which was not given in partition and the same is the self acquired property of the plaintiffs No.2&3 and it was wrongly included in the partition of the property. Therefore, they filed the suit before the trial court.

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5. The defendants No.1 to 3 contested the claim of plaintiffs; filed their written statement; denied the plaint averment and pleaded that the land of village Kashigarh and Aamgaon have been mutated in the names of defendants and the name of Dharmu was legally deleted from the revenue records. In the lands of village Kashigarh and Aamgaon there is no share of plaintiffs. Sonau Ram and Bhaiya Ram were the title and possession holder of the lands of village Kashigarh and Aamgaon. On 07.06.1982 there was a partition between the members of the family with respect to lands of village Kashigarh, Aamgaon and Mauhadih. As per their mutual partition, the lands of village Kashigarh and Aamgaon were obtained by defendants No.1&2 and the lands of village Mauhadih was given to the plaintiffs in their share and the plaintiff No.1 has executed a memorandum on 07.06.1982 and thereafter plaintiffs settled at village Mauhadih and left the land of village Kashigarh and cultivating the lands of village Mauhadih. They are not entitled for again partition of the property. The plaintiff No.1 is stopped by the principles of estoppel to say anything against memorandum dated 07.06.1982. The revenue appeal filed by the plaintiffs before the SDO (R) Sakti has

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also been dismissed which was further not challenged, therefore, the plaintiffs have no right or title over the lands of village Kashigarh and Aamgaon and there is no question of reopening the partition. It is also pleaded that the plaintiffs have not filed their suit within thee years from the date of execution of memorandum dated 07.06.1982. The suit was filed on 24.02.2005 which was apparently barred by limitation and no relief can be granted to the plaintiffs.

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6. Based on the pleadings, the trial court framed issues and proceeded for recording evidence of the parties. During trial, the plaintiffs examined Mahadev, PW-1, Tarachand, PW-2, Babu Ram Kenwat, PW3 and relied upon document of record of right of the year 1954-55 Ex.P/1 & P/2, order sheet dated 25.06.2004 passed by the SDO(R)Sakti P/3, order sheet dated 18.02.2005 passed by SDO(R)Sakti, P/4, sale deed executed in favour of Mahadev and Sahadev dated 25.06.1976, Ex.P/5. The defendants have examined Sonau Ram, DW-1, Jhaduram, DW-2 and Mahettar Lal, DW-3 and relied upon the documents Ikrarnama dated 24.05.2000, Ex.D/1, memorandum dated 07.06.1982, Ex.D/2, order sheet of SDO(R) Sakti dated 18.02.2005, Ex.D/3 and order sheet dated 18.06.2004, D/4 and order sheet dated 25.06.2004, Ex.D/5.

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7. After appreciation of oral as well as documentary evidence led by the parties, the trial court vide its judgment and decree dated 12.03.2008 dismissed the suit of plaintiffs holding that partition between the parties have already been effected before 07.06.1982 and the plaintiffs have no right or title over 1/4th share of the suit property. It was also held that plaintiffs could not prove that memorandum dated 07.06.1982 is

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forged and fabricated document. The judgment and decree passed by the trial court was challenged by the plaintiffs No. 2 to 4 before the first appellate court. After hearing the parties. the first appellate court also dismissed the plaintiffs appeal affirming the judgment and decree passed by the trial court. Hence this Second Appeal which has been admitted by the court on the substantial questions of law as set out in the earlier paragraph of this judgment.

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8. Learned Senior counsel appearing for the appellants would submit that the the document Ex.D/2 which is said to be memorandum executed by plaintiff No.1-Mayamati is inadmissible document as from the contents of document it clearly appears that it was an exchange deed and without there being any registration, no title can be passed by the said exchange deed and it is not admissible in evidence. The trial court as well as the first appellate court has considered the same as a memorandum of partition and after admitting the said document in evidence relied upon the same while passing the judgment. The suit lands were purchased by Mahadev and Sahadev, the plaintiffs No.2&3, by their mother Mayamati, plaintiff No.1 through registered sale deed dated 25.06.1976 and it was their self acquired property and could not be the subject matter of partition, yet the same got allotted to defendants in the alleged partition. The trial court has erred in holding that since plaintiff No.1-Mayamati has not examined herself, adverse inference has been drawn against her whereas, the other plaintiff Mahadev have been examined in the case. The plaintiffs were non suited also on the ground of limitation holding their suit barred by limitation. The findings recorded by the trial court that without there

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being any claim of revocation of earlier partition, the plaintiffs are not entitled to maintain the suit for partition again. The plaintiffs have not filed the suit within three years of earlier partition. At the time of alleged partition the plaintiffs were minor and on the date of filing of suit i.e. on 28.02.2005 the plaintiff No.2 Mahadev was aged about 35 years, Sahadev was aged about 32 years and Puni Bai was aged about 25 years. Therefore, the suit is not filed within three years of attaining their age of majority and it is barred by limitation which is a perverse finding in view of the fact that the plaintiffs are claiming that there was no partition of the property between the members of family and they can claim partition at any time during the subsistence of joint family. There is no limitation prescribed to claim partition from the joint property. The first appellate court has also passed the judgment and decree without adverting the entire evidence and it has been passed in a mechanical manner. Therefore, the impugned judgment and decree are liable to be set aside and the suit may be decreed.

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9. On the other hand, learned counsel appearing for the respondents opposes the submissions made by the counsel for the plaintiffs and submits that earlier there was partition of joint family property prior to 07.06.1982 and plaintiff No.1 Mayamati executed a memorandum with respect to the earlier partition and family settlement on 07.06.1982 which his Ex.D/2. The document Ex.D/2 is not an exchange deed but is a memorandum of family settlement that property of village Mauhadih was retained by Mayamati and the property of village Kashigarh and Aamgaon was given to defendants No.1&2 and according to which they have settled in their family. The memorandum of family settlement

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was not challenged by the plaintiffs. He would also submit that the suit land of village Jaijaipur was purchased in the name of Mahadev and Sahadev from the income of joint family property and at the time of its purchase both of them were minor and it was the joint family property though it was purchased in the name of minors. Therefore, the said property was also the subject matter of partition. From 07.06.1982 till filing of suit, the plaintiffs have not raised any objection in their cultivation and the parties have mutated their names in the revenue records. Since the memorandum of partition is not an exchange deed, it does not require registration and it is admissible in evidence which has rightly been considered by the trial court as well as first appellate court. The executant of said memorandum of family settlement Ex.D/2 i.e. plaintiff No.1 Mayamati has not examined herself in faovur of plaintiff. Even after dismissal of their suit, she has not filed any appeal against that judgment and decree and it is only plaintiffs No.2 to 4 who filed the suit which also gives presumption that memorandum of family settlement was duly executed on 07.06.1982 and it is valid and admissible document of the settlement of the property between the family members. Once partition and settlement of property had already been taken place, it cannot be reopened after such a long period. The parties were aware about memorandum of settlement dated 07.06.1982 from very beginning, yet civil suit was filed in the year, 2005 which is apparently barred by limitation and the judgment and decree passed by both the courts below does not suffer from any perversity or illegality and the appeal is liable to be dismissed.

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10. I have heard the counsel for the parties, perused the record of trial court and gone through the evidence available on record.

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C onsideration on substantial question of Law No.1-

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11. The question that needs consideration is whether document Ex.D/2 dated 07.06.1982 is rightly considered by both the courts below or it was a deed of exchange and without there being any registration of the deed whether it is inadmissible in evidence or not.

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12. From careful and close reading of document Ex.D/2 it appears that it has been executed by the plaintiff No.1 on 07.06.1982 by which it has been acknowledged that they had the lands at village Kashigarh, Aamgaon and Mauhadih and as per their mutual consent, they partitioned the family property and Mayamati gave her share to Sonau and Bhaiyaram with respect to land of village Kashigarh and Aamgaon and she retained the property of village Mauhadih and left her possession from remaining property and given opportunity to the parties to get their name mutated over their respective property either village Kashigarh, Aamgaon or Mauhadih. Thus, from the contents of document Ex.D/2 it clearly reveals that prior to execution of this document on 07.06.1982 they had already settled their property for their entitlement and according to which this memorandum Ex.D/2 was executed by plaintiff No.1 Mayamati in presence of witnesses. From its contents it does not appear to be an exchange deed, but it clearly appears to be a memorandum of their family settlement.

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13. Section 118 of Transfer of Property Act defines exchange, which reads as under:

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“118. “Exchange” defined- When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or

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both things being money only, the transaction is called an "exchange".A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.”

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14. In Shyam Narayan Prasad Vs. Krishna Prasad & Others,

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2018(7)SCC 646 , the Supreme Court has held in paragraph 18 as under:

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“18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs.100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.”

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15. The further question to be considered is whether such a document Ex.D/2 creating right in favour of defendants in the part of the suit land requires registration under the provisions of The Registration Act, 1908, for which, it would be necessary to notice Section 17 of the Act, 1908

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which reads as under:

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“17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,

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(a) instruments of gift of immovable property;

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(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

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(c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

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(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

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(e)[ non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish,

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whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] [Inserted by Act 21 of 1929, Section 10.]

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Provided that the [State Government] [Substituted by A.O.1950, for "Provincial Government" .] may, by order published in the [Official Gazette] [Substituted by A.O.1937, for "Local Official Gazette" .], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.”

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16. A close reading of Section 17(1)(b) of the Act, 1908 leaves no manner of doubt that a document which purports or operate to create any right, title or interest, in immovable property it required to be compulsorily registered by virtue of the aforesaid provision of the Act, 1908. However, if the document does not create any right, title or interest over the property and it would only be a separation of their holding, it does not require registration.

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17. It is well settled that when a deed is reduced in writing evidencing partition, it would have the effect of declaring exclusive title to whom the property is allotted, it is required to be registered under Section 17(1)(b) of the Act, 1908, but if the terms of family arrangement are only reduced in writing, it would be outside the purview of Section 17(1) (b) of the Act, 1908.

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18. In the matter of Kale Vs. Deputy Director of Consolidation, 1976(3)SCC 119 , in paragraph 10.4 it was held as under:

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“10. 4. It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum 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”

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19. In K.G. Shivalingappa (Dead) By LRs & Others Vs. G.S. Eswarappa

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& Others, 2004(12)SCC 189 , it has been held in paragraph 13 as under :

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“13. In Nani Bai v. Gita Bai Kom Rama Gunge , it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it. would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Section 17(1)(b) of the Indian Registration Act. This decision was followed in Shiromani and Ors. v. Hem Kumar and Ors., and Roshan Singh v. Zile Singh, AIR 1988 SC 881. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, , after analysing the judgments, referred to above, this Court observed:

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"Partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would all within the mischief of Section 17(1)(b) of the Registration Act under which the document is compulsorily registerable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar and Roshan Singh v. Zile singh, (AIR 1988 SC 881)."

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20. The executant of memorandum of family settlement Ex.D/2 is the

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plaintiff No.1 Mayamati who has not been examined herself though she was alive during trial. DW-2, Jhadu Ram is the witness to said deed Ex.D/2 who duly proved execution of document Ex.D/2 by the plaintiff No.1 Mayamati. Jhadu Ram is the nephew of Dharmu who was the father of defendant No.1. He stated that the properties held by the parties were their joint property. They had properties at village Aamgaon, Mauhadih and Kashigarh. Before execution of document Ex.D/2, the property of their joint family were partitioned amongst three brothers and all three brothers were residing separately. He specifically

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denied that Ex.D/1 & D/2 are forged and fabricated document. He proved mutual partition of properties amongst the members of the family that plaintiff has got the lands at village Mauhadih and they have no right or title over the land of village Kashigarh and Aamgaon. The plaintiffs have claimed that the land of village Mauhadih were purchased in their names through registered sale deed dated 25.06.1976 and it was their self acquired property which cannot be partitioned, but there is no evidence produced by the plaintiffs or Mayamati that the said property of village Mauhadih was purchased from her own income because at that time the plaintiff No.2&3 were minor in whose name the sale deed was executed and all of them were residing jointly. The burden to prove the property is self acquired property of any member of joint family is upon the party who asserts that it was his self acquired property as has been held by the Supreme

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Court in Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, AIR 1969 SC 1076 . In the present case the plaintiffs could not led any evidence that property of village Mauhadih was not purchased from the income of joint property and purchased from their own income. Particularly the plaintiff No.1 Mayamati has not been examined herself to clarify the entire facts as to whether the said property was purchased in the name of two minor sons out of their own income or from the income of joint property and also whether there was any memorandum of settlement executed on 07.06.1982 or not. She could be the best witness in support of the claim of plaintiffs but she did not produce herself to be examined before the court and therefore an adverse inference should have been drawn against the plaintiffs

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despite having examination of plaintiff No.2 as the witness. In absence of any rebuttal it can safely be held that property purchased through registered sale deed dated 25.06.1976 Ex.P/5 is the joint family property purchased from the income of joint family though it was in the name of two minor sons namely Mahadev and Sahadev. There is no dispute in the fact that Dharmu was having his ancestral property at village Aamgaon and Kashigarh and thus there were properties of joint family situated at three villages i.e. Aamgaon, Kashigarh and Mauhadih.

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21. The claim of the plaintiffs are that in the property of village Kashigarh and Aamgaon, they have not been allotted any share and the property of Mauhadih are their self acquired property. The document dated 07.06.1982 have also been denied by the plaintiffs and submitted that it was an exchange deed with respect to properties of different villages, however, as has been held earlier that it was not an exchange deed but is a memorandum of family settlement. Since the properties of three villages were joint family property and it does not create or extinguish right but it was a separation of preexisting rights of the property, it was only separation of holding.

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22. In the matter of Ravinder Kaur Grewal & Others Vs. Manjit Kaur &

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Others, AIR 2020 SC 3799 the Supreme Court has held that the rule of estoppel still apply on failure to get the family arrangement registered even if a family arrangement which required registration was not registered. It was held in paragraph 16 as under:

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“16. Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to

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sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a three-Judge Bench of this Court had observed thus:

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9...... 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 administration 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 antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed forever 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 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. .....

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In paragraph 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows:

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1 0 . 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:

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(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;

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(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

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(3) The family arrangement may be even oral in which case no registration is necessary;

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(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

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(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 which is acknowledged by the parties to the settlement.

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Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

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(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.

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Again, in paragraph 24, this Court restated that a family arrangement being binding on the parties, 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. In paragraph 35, the Court noted as follows:

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... 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 donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. .....

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And again, in paragraph 36, the Court noted as follows:

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... 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 Nos. 4 and 5 at the 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. ...

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While rejecting the argument regarding inapplicability of principle of estoppel, the Court

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observed as follows:

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... 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. .....

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And in paragraph 42, the Court observed as follows:

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42...... 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 Nos. 4 and 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. ..

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The view so taken is backed by the consistent exposition in previous decisions3 referred to and duly analysed in the reported judgment. The question formulated by the High

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Court, in our opinion, stands answered in favour of the Appellants (Plaintiff), in light of exposition of this Court in Kale (supra). A priori, we have no hesitation in affirming the conclusion reached by the first appellate Court that the document Exhibit P-6 was nothing but a memorandum of a family settlement. The established facts and

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circumstances clearly establish that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. That finding of fact recorded by the first appellate Court being unexceptionable, it must follow that the document Exhibit P-6 was merely a memorandum of a family settlement so arrived at. Resultantly, it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting Defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.”

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23. Further, in the matter of Thulasidhara & Another Vs. Narayanappa &

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Others, 2019(6)SCC 409 in paragraph 9.4 and 9.5 the Supreme Court has held as under:

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“9.4 It is required to be noted that the deed dated 23.04.1971, under which the suit property had gone /devolved in favour of the Krishnappa, was reduced in writing before the Panchayat and Panchas, and the same was signed by the village people/panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (crossexamination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tellies with the document dated 23.04.1971 (Exhibit D4). Execution of the document/ Partition Deed/ Palupatta dated 23.04.1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under:

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“13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They 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.

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As observed by this Court in T.V.R. Subbu Chetty’s Family Charities case, 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

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the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.”

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9.5 As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23.04.1971 and he also admitted that 3 to 4 punchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of plaintiff that there was an oral partition on 23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Exhibit D4 dated 23.04.1971.”

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24. From the evidence of PW-1, Mahadev, it further transpires that though he claimed over the land of village Mauhadih that it was purchased by his mother, but his mother has not been examined with respect to payment of sale consideration from her own income so that it could be held it was their self acquired property and not the property of joint family. Therefore, by drawing adverse presumption against the plaintiffs, the trial court as well as the first appellate court has rightly considered that the property of village Mauhadih was purchased from the income of joint family property and it was also the joint property of the family.

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25. From careful perusal of the evidence available on record as well as finding recorded by both the courts below, this court does not find any infirmity or illegality that document Ex.D/2 is a deed of memorandum of family settlement and not a deed of exchange and it is not required to

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be registered and an admissible document. Its execution has not been rebutted by the plaintiffs by examining the plaintiff No.1 Mayamati.

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Consideration on substantial Question of Law No.2-

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26. The trial court has framed issue No.5 with respect to limitation to file the suit. The plaintiffs have filed the suit for declaration of title over 1/4th share of the suit property and separate possession, however, they have not challenged the memorandum dated 07.06.1982. Once the memorandum of settlement Ex.D/2 was found proved that it was executed by plaintiff No.1 Mayamati on 07.06.1982 which was the document of acknowledgment of family settlement, the plaintiffs were required to challenge the same within its limitation period. The plaintiffs No.2 to 4 were minor at that time, but the plaintiff No.1 who was their mother, could have challenged the execution of deed Ex.D/2. Even after attaining the age of majority, the plaintiffs have not challenged the said deed Ex.D/2. The plaintiff No.1 was acted as a guardian of plaintiffs No.2 to 4 and executed the deed Ex.D/2 on 07.06.1982. The plaintiffs did not challenge their partition within three years of attaining their majority and thus the suit filed by the plaintiffs was held to be barred by limitation. Though there is no limitation to file a suit for partition, however, in the present case it has been held that partition of joint family property has already been taken place prior to 1982 and on 07.06.1982 a memorandum of family settlement was executed by plaintiff No.1 acknowledging the earlier partition/settlement of the family property that the property of village Kashigarh and Aamgaon would be the share of defendants and the property of village Mauhadih would be the share of plaintiffs and therefore if the plaintiffs were not satisfied

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with the said partition, they should have challenged the same within its limitation period. Even if the plaintiffs No.2 to 4 were minor at that time, they could have challenged the same within three years of attaining their age of majority, however, within the stipulated time they have not filed their suit and thus it is barred by limitation.

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27. Accordingly, both the substantial questions of law are answered that the courts below have rightly recording a finding treating the document Ex.D/2 as the deed of partition/deed of memorandum of settlement executed on 07.06.1982 and it was not a deed of exchange, and further, the court below have correctly held that suit of plaintiffs is barred by limitation.

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28. As a fallout and consequence of the aforesaid discussion, the appeal filed by the appellants/plaintiffs are devoid of merit and accordingly dismissed. The parties shall bear their own cost.

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29. An appellate decree be drawn accordingly.

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Sd/(Ravindra Kumar Agrawal) Judge

inder

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HEAD NOTE

Second Appeal No. 455 of 2012