JUDGMENT This is an appeal against the judgment and decree passed by the learned Additional District Judge, 2nd Court at Alipore in Title Appeal no. 272 of 1973 setting aside the judgment and preliminary decree passed by the learned Subordinate Judge, 7th Court, Alipore in Title Suit no. 61 of 1962 with regard to the property described in item no. (i) of schedule 'Ka' of the plaint and modifying the preliminary decree with regard to the property described in item no. (ii) of the schedule ‘Ka’ of the plaint. 2. The plaintiff/appellants filed the suit for partition claiming 7 annas 1 gandas 1 kara 1 kranti share partly by inheritance and partly by 4 purchases from 4 co-sharers. 3. In the plaint originally there were two schedules of properties-'Ka' schedule relating to khas lands and 'kha' schedule relating to tenanted lands. In the 'ku' schedule there were three items: (i) Dag no. 846 of C.S. Khatian no. 597 in Mouja Rajpore within the local municipality having an area of 52 acres with a building on it, (ii) Dag no. 508 of C.S. Khatian no. 758 in the same Mouza measuring 14 acre with mud huts opposite item no. 1 intervened by a road and (iii) Dag no. 69 of C.S. Khatian no. 696 in the same Mouza measuring 1.82 acre which was a garden with trees and under the direction of the Hon'ble High Court given in the judgment on 16.12.70, item no. (iii) of schedule 'Ka' and the entire schedule 'Kha' were deleted from the plaint schedule and the suit thereafter was confined to item nos. (i) and (ii) of schedule 'Ka' only but the bone of contention, between the parties is with regard to item no. 1 of schedule ‘Ka’of the plaint. 4. The plaintiff's case was that the suit properties originally belonged to Gurudas Bhattacharjee, common ancestor of the parties. Gurudas had five sons-Digambar, Chandrakanta, Jadunath, Asutosh and Jogendranath. The eldest son Digambar predeceased the father while the second son Chandrakanta was unheard of since 1899 Gurudas died at the ripe old age of 97/98 years in the early part of the century. The plaintiffs and defendants nos. 1 and 2 are the grandsons of Digambar. In quick succession within a span of only 36 days between the 19.4.46 and 24.5.46, the two plaintiffs obtained four sale deeds from Shibchandra, father of the defendant no. The plaintiffs and defendants nos. 1 and 2 are the grandsons of Digambar. In quick succession within a span of only 36 days between the 19.4.46 and 24.5.46, the two plaintiffs obtained four sale deeds from Shibchandra, father of the defendant no. 5, Lalbehari, father of defendant no. 7, Kalidasi, widow of Surendra and Harendra and Dwijendra, defendant nos. 1 and 2. The plaintiffs claimed 53/120 share-1/10 share by inheritance through Digambar. 1/10 by purchase from Shibchandra, 1/16 by purchase from Lalbehari, 1/10 by purchase from Kalidasi, 1/10 by purchase from Harendra and Dwijendra and 1/40 by inheritance from Jogendra. At the time of the first trial, the plaintiffs abandoned the claim to 1/40 share by inheritance from Jogendra and since then the plaintiffs confined their claim to 5/12 share asserting that the suit property had never been partitioned by metes and bounds amongst the co-sharers and their joint possession had become inconvenient because of erroneous recording of shares in the C.S. Khatians and that the plaintiff demand for partition out of court had been turned down by the defendant no. 3. 5. Defendant nos. 8 to 12, the five sons of Haripada, son of Asutosh, flied a written statement supporting the plaintiffs case. The suit was contested by defendant no. 3, Bidhubhusan, the sole surviving son of Chandrakanta. He did not claim any interest in item no. (ii) of schedule 'Ka' but confined his claim only to item nos. (i) and (iii) of schedule 'Ka'. As already stated earlier item no. (iii) has since been deleted. The defence case was that Gurudas and his other four sons lived in poverty while Chandrakanta lived in affluence. He worked in a Sailors' Home in Calcutta and earned a handsome income. He used to send money to his father, Gurudas for acquisition of property in the village for him but the father purchased the land in item no. I of schedule 'Ka' with the money of Chandrakanta in his own name. The feeling between the son and the father became strained and the father then executed a mortgage died in 1881 in favour of Chandrakanta for this land and also item no. (iii) acknowledging a debt of Rs. 800/- for a term of 10 years. I of schedule 'Ka' with the money of Chandrakanta in his own name. The feeling between the son and the father became strained and the father then executed a mortgage died in 1881 in favour of Chandrakanta for this land and also item no. (iii) acknowledging a debt of Rs. 800/- for a term of 10 years. Subsequently, in the presence of the other sons the father gave up his claim of title and Chandrakanta also relieved the father of debt and in pursuance of that arrangement or settlement, Chandrakanta began to assert exclusive title to this land and with his money he constructed a two-storeyed building on it. Since then the land and building came in the exclusive possession of Chandrakanta and after him of his sons. The other sons of Gurudas had no interest in the item no. I of schedule 'Ka' and they or their heirs never exercised any act of possession in respect of any part of land or building. Defendant no. 3 lived in Calcutta and his brother Debendra who had been looking after the C.S. operation in the village died after the preparation of the draft khatians and taking that advantage the heirs of the other sons of Gurudas including the plaintiffs got their names recorded in the finally published C.S. khatian but they never exercised any act of possession. Koblas obtained by the plaintiffs in quick succession in 1964 were all speculative transactions. Kalidasi had been living elsewhere and she had no necessity for the alleged sale. Her interest had also been extinguished by adverse possession. The defendant also claimed exclusive title by adverse possession since the time of Chandrakanta. The plaintiff had no interest in item no. I of schedule 'Ka' and were not entitled to get any decree for partition for that property. 6. Upon a consideration of the evidence on record, the trial court passed a preliminary decree for partition in favour of the two plaintiffs for 6 annas 13 gandas 1 kara 1 kranti share in respect of both the items of schedule 'Ka' of the plaint with the direction that the entire building on item no. 1 will be allotted to the substituted heirs of defendant no. 3, since deceased, as it had been constructed by their predecessor-in-interest Chandrakanta with his money. 1 will be allotted to the substituted heirs of defendant no. 3, since deceased, as it had been constructed by their predecessor-in-interest Chandrakanta with his money. The findings of the trial court were as follows : Chandrakanta had advanced money to his father Gurudas and the latter who had purchased the land of item no. 1 in his own name acknowledged the debt and mortgaged the land in favour of Chandrakanta by a registered mortgage deed. By accepting mortgage from the father Chandrakanta had acknowledged the title of the father and so he could not claim any title except as a mortgagee. Chandrakanta alone constructed a building on this land and the father or the other brothers of Chandrakanta did not contribute to the cost of construction of the building. The family arrangement regarding this land as alleged in the written statement, even if any, was not legally valid. Continuous possession by Chandrakanta and his heirs alone of this property is belied by the entry in the C.S. Khatian and even such continuous possession did not become adverse against the interest of the other heirs of Gurudas as all were co-sharers and possession of some ensured to the benefit to all, there being no reliable evidence of ouster of the other co-sharers. By the sale deeds the plaintiffs had acquired valid title in respect of the shares of the transferors and the sale by Kalidasi was justified by legal necessity. 7. The substituted heirs of the defendant no. 3, since deceased preferred title appeal no. 272 of 1973. The learned Additional Sessions Judge who heard the appeal set aside the findings of the learned Munsif that the plaintiffs had any share in item no. I of schedule 'Ka' of the plaint. According to him there was a valid family arrangement or settlement by which Chandrakanta got exclusive title to the said property. The learned Additional District Judge has further held that even if there was no valid family arrangement or settlement, the mortgagor's title was completely extinguished. The mortgage could have been redeemed within sixty years from 1891, i.e. by 1951. But the mortgage was never redeemed. The learned Additional District Judge has further held that even if there was no valid family arrangement or settlement, the mortgagor's title was completely extinguished. The mortgage could have been redeemed within sixty years from 1891, i.e. by 1951. But the mortgage was never redeemed. When the period of limitation is prescribed by Article 148 of the Limitation Act, 1908, for a suit for redemption was determined the mortgagor's title to the land was completely extinguished by operation of s. 28 of the Act so that the heirs of Chandrakanta who were in possession became absolute owners. It has further been held that on the basis of some arrangement Chandrakanta and his heirs were all along in exclusive possession of item no. (i) of 'Ka' schedule property and that possession was never a possession of a co sharer. It has also been held by him that the entry in the finally published C.S. Record of-Rights is wrong. The alleged four transfers in favour of the plaintiff by four co-sharers were held to be speculative transactions. It has been further held that there was no legal necessity for transfer by Kalidasi and the said transfer is not, therefore, binding on the reversioner. The Lower Appellate Court, therefore, set aside the decree of the Trial Court with regard to the item no. I of schedule 'Ka' and dismissed the suit with regard to this item. With regard to item no. II of schedule 'Ka' the Lower appellate court affirmed the preliminary decree of the trial court with the modification as to the share of the plaintiffs. The lower appellate court has declared the plaintiff's share to the extent of 11/12 in the property of item no. II of schedule 'Ka' of the plaint. Being aggrieved, the plaintiffs have preferred this second appeal. 8. Mr. Banerjee, learned Advocate for the appellant has contended that the alleged family arrangement between a Dayabhaga father and his sons by which item no. I of schedule 'Ka' was absolutely allotted to Chandrakanta is invalid in law without a registered document and that the oral relinquishment of the right of redemption conferring absolute title on the mortgagee is also not valid without a necessary registered document. Mr. Ghosh, learned Advocate for the respondents, has, on the other hand, contended that family arrangement does not amount to transfer and no conveyance is necessary. 9. Mr. Ghosh, learned Advocate for the respondents, has, on the other hand, contended that family arrangement does not amount to transfer and no conveyance is necessary. 9. It is well settled that a compromise or family arrangement is based on the assumption that there is 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 portion 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 (Sahu Madho Das & ors. v. Mukand Ram, AIR 1955 SC 481 ). In this case, the parties are, however, governed by the Dayabhaga law under which the father (Gurudas) was the absolute owner of the property. So long as he lived his sons including Chandrakanta had no right to it. The transaction could only be regarded as a gift or sale and as there was no registered deed of gift or sale the so called arrangement was not valid and title could not pass to Chandrakanta by the said arrangement. In Kisto Chandra Mondal v. Mt. Anilabala Dosi, AIR 1968 Patna 487 it has been held that where the parties to a transaction were governed by Dayabhaga law under which the father was the absolute owner of this property and so long as he lived his sons and grand-sons had no fight to it and the father in contemplation of disputes amongst his heir; after his death, allotted separate share of his property to his four grand-sons, the transaction could not be recorded as a family settlement. The grand-sons having no claim to the property allotted to them, there was no question of any giving and taking. The transaction was only an one sided affair and could be regarded only as a gift to the grand sons. The grand-sons having no claim to the property allotted to them, there was no question of any giving and taking. The transaction was only an one sided affair and could be regarded only as a gift to the grand sons. As there was no registered deed of gift the transaction did not confer any title on the grand-sons. 10. The same conclusion must be reached even if it is held that the transaction was between a mortgagor and the mortgage by which the mortgagor relinquished his right of redemption. As held in Balakrishana Gopal v. Rangnath Hanmat, AIR (38) 1951, Nagpur 171, where a mortgagor delivers possession of the property mortgaged to the simple mortgagee in satisfaction of the debt, the transaction does not amount to compromise of disputed claim as no title vests in the mortgagee Under s. 60 of the Transfer of Property Act, the right to redeem can only be extinguished by acts of parties or by a decree of a court. When it is by act of parties the act must take the shape and observe the formalities which the law prescribes. One method is by payment in cash. In that event nothing is necessary beyond the payment. But if the agreement is to transfer immovable property exceeding Rs. 100/- in value, the writing and registration are necessary. Mere delivery of possession under an oral agreement is not enough. 11. The next question for our consideration is whether Chandrakanta and his heirs acquired good title to the property described in item no, (i) of schedule 'Ka' in the plaint by adverse possession for more than 12 years. Alternative case of adverse possession was specifically pleaded. The finding of the trial court is that Chandrakanta and after his death his heirs were all along in possession of the said property and that Chandrakanta constructed the two storeyed building with his own money. He has, however, held that the possession of Chandrakanta and his heirs was as a co-sharer on behalf of other sons of Gurudas and their heirs and in the absence of ouster that possession cannot be called adverse. The lower appellate court has, on the other hand, held, and in my opinion rightly, that possession of Chandrakanta and his heirs was not as a co-sharer. Gurudas gave up possession of the disputed property in favour of Chandrakanta in pursuance of the invalid oral transfer. The lower appellate court has, on the other hand, held, and in my opinion rightly, that possession of Chandrakanta and his heirs was not as a co-sharer. Gurudas gave up possession of the disputed property in favour of Chandrakanta in pursuance of the invalid oral transfer. Exclusive possession of Chandrakanta on the assertion of title was adverse to Gurudas when the other sons of Gurudas have no interest in the property and Chandrakanta was not a co-sharer. The clear finding of the lower appellate court is that Chandrakanta and his heirs were in exclusive possession of the entire property described in item no. (i) of schedule 'Ka' for generations claiming absolute title and neither Gurudas nor after his death his other sons or their heirs ever sought to redeem the mortgage nor claimed any title or possession in respect of any part of the said property and that that possession was not as a co-sharer. There cannot, therefore, be no doubt that Chandrakanta and his heirs acquired indefeasible title to the said property by continuous diverse possession for about 50 years. 12. Mr. Banerjee, has challenged the finding of the lower appellate court that sale by Kalidasi by Ext. (16) in favour of the plaintiffs was not for legal necessity and was not, therefore, binding on the reversioners. It appears that there is no independent evidence as to existence of legal necessity. The plaintiff no. 1 (PW 2) did not utter a word in evidence that before obtaining a Kobala from her, the plaintiffs made any enquiry as to whether Kalidasi was really in want. She was living elsewhere. Even though Kalidasi was alive at the time of the hearing of the suit, she was not cited as a witness to prove the alleged legal necessity. The trial court solely relied on recitals in the deed of sale as to the existence of the necessity. It is well settled that recitals in deeds of sale as to the existence of necessity are admissible in evidence but they are not evidence themselves of the fact. To substantiate the allegation of the existence of necessity there must be some evidence aliunde. It is well settled that recitals in deeds of sale as to the existence of necessity are admissible in evidence but they are not evidence themselves of the fact. To substantiate the allegation of the existence of necessity there must be some evidence aliunde. The reason is that the alienee to protect his interest may get false recitals be made But when by efflux of time evidence independent of the recitals becomes unavailable, a recital of necessity consistent with probability and circumstance, assumes greater importance, The plaintiffs obtained the Kobala from Kalidasi in 1946. They filed the suit in 1949 when Kalidasi was alive. The witnesses on the plaintiff side did not say anything about any necessity of Kalidasi. The lower appellate court was, therefore, right in holding that the sale was not for legal necessity and was not binding on the contesting defendant no. 3, who was the next reversioner. 13. There is also no infirmity in the finding of the lower appellate court that the four Kobalas obtained by the plaintiffs from co-sharers in quick succession within a span of 36 days between the 19.4.46 and 24.5.46 were speculative Kobalas to bolster up a false claim to this property. 14. In the result, the appeal is dismissed with costs and the judgment and decree or the lower appellate court are confirmed though on a different ground. Appeal dismissed.