Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 654 (GAU)

Gauri Shankar Agarwalla v. Madanlal Agarwalla

2010-08-26

C.R.SARMA, RANJAN GOGOI

body2010
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and decree, dated 11.8.2008 and 18.8.2008 respectively passed by the learned Civil Judge, Tinsukia, in Title Suit No. 66/2006. The Plaintiff's suit being dismissed by the learned trial Judge, the Plaintiff, as Appellant, has come up with this appeal. 2. The Plaintiff's case, in brief, may be stated as below: - The Plaintiff is the absolute owner of 1 katha, 11/2 lessas of land appertaining to a part of Dag No. 1337(New)/458(01d) of periodic patta No. 422(Old)/1160(New), situated at Tinsukia Town Ekma Khanda-3, Mouza-Tinsukia, and another plot of land measuring 4 kathas, 11 lessas, covered by Dag No. 1313, 1334, 1338 of periodic patta No. 250 situated at Tinsukia Town Ekma Khanda-1, Mouza-Tinsukia, along with the residential building and the shop houses standing thereon. The residential building and rented premises are covered by Holding No. 2343 and 2343(a) of Tinsukia Municipal Board. The suit property has been fully described in the schedule to the plaint. In order to avoid quarrel, among his sons (Defendant Nos. 1 to 3), the Plaintiff permitted his sons, i.e., the Defendant Nos. 1, 2 and 3 to reside separately, since 2000, with the arrangement that the Defendant No. 1 was allowed to reside with his family in the first floor while the Defendant No. 2 was allowed to reside with his family in the second floor of the building, standing on the suit premises. The Defendant No. 3 was allowed to reside in the house situated at Delhi. The ground part of the said building at Tinsukia was divided into two parts and each of the Defendant Nos. 1 and 2 were allotted one part in the ground floor of the building as permissive occupier, to run their businesses, for maintaining their livelihood. But, the Defendant No. 2, vide order passed in Mutation Case No. 180/A, got his name mutated in respect of land measuring 3 kathas, 9 lessas, covered by Dag No. 1337 (in part) of P.P. No. 1160 and Dag No. 1138 (in part) and 1334 of P.P. No. 250, which was a part of the suit land as described in Schedule-'A' to the plaint and obtained separate Dag Nos. 1660, 1661 and 1662 of P.P. No. 2142. 1660, 1661 and 1662 of P.P. No. 2142. Similarly, the Defendant No. 1 also, vide Mutation case No. 475/02, got his name mutated in respect of Schedule-'B' land measuring 2 kathas, 18 lessas covered by Dag Nos. 1334, 1338 of P.P. No. 250 and Dag No. 1337 of P.P. No. 1160. The Defendant No. 3 too, vide Mutation Case No. 188(A) of 2005-06, got his name mutated, in respect of land covered under Dag No. 1338 (in part) of P.P. No. 250 in respect of land measuring 1 katha, 18 lessas as described in Schedule-'C' to the plaint. According to the Plaintiff, after receipt of the notice in the mutation case aforesaid, he raised objection and approached the Circle Officer, with a prayer for cancellation of the said mutation order, but the Defendant Nos. 1, 2 and 3 managed to get their names mutated and obtained separate pattas and holding numbers, as aforesaid. It is also averred that the Defendant No. 2, without having right, title and interest over the suit land and without any permission from the Tinsukia Development Authority, started construction of a shed measuring 15 ft. x 25 ft. with C.I. Sheet roof and wooden post and completed the same on 1.11.2006 thereby covering the water tank and the broken pillars of the tank, situated on the third floor of the building, which has been described in Schedule-'B' to the plaint. According to the Plaintiff, the Defendants have no right, title and interest over the suit premises and they are just permissive occupiers. Hence, the Plaintiff instituted the suit for - (i) declaration of right, title and interest over the suit properties; (ii) declaration that the mutation in the name of the Defendant Nos. 1, 2 and 3 in respect of Schedule-'A', 'B' and 'C' land and the allotment of new holding number to the Defendant No. 2 were illegal and liable to be cancelled; (iii) declaration that the construction of shed/structure by the Defendant No. 2 on the top of the 3rd floor of the building situated in 'D' Schedule land was illegal and liable to be demolished; (iv) mandatory injunction with other consequential reliefs restraining the Defendant No. 2 from transferring or alienating the 'A' Schedule property. 3. The Defendant No. 1, by filing a written statement, stated that he had no objection, if the mutation, granted in his favour, was cancelled. 4. 3. The Defendant No. 1, by filing a written statement, stated that he had no objection, if the mutation, granted in his favour, was cancelled. 4. The Defendant Nos. 2 and 3 contested the suit by filing their respective written statements. Taking the pleas, that the suit was not maintainable, that the suit was barred by principles of waiver and estoppel, that the suit was hit by the provisions of Section 154 of the Assam Land Revenue Regulation, 1886 and Section 296 of the Assam Municipal Act, the contesting Defendants, in their written statements, contended, inter alia, that the entire suit-property belonged to a "Hindu Undivided Family" (HUF) known as "M/s. Chandulal Gaurishankar" of which the Plaintiff was the karta and the Defendants Nos. 1, 2, 3 and Sri Mangtu Ram Agarwalla were the coparceners in respect of the property belonging to the said HUF. The contesting Defendants further contended that, due to some dispute between the members of the said HUF with regard to the common enjoyment and possession of the HUF properties, the dispute was referred to some mediators namely Sri Ram Nagina Singh (since deceased), Sri Bijoy Kumar Garodia and Sri Arun Kumar Jalan for amicable settlement and that, at the intervention of the said mediators, the parties arrived at a mutual settlement, followed by a Memorandum of Understanding ('MoU') dated 9.9.2000 (Ext. No. A) and accordingly, as agreed to by all the coparceners, on the basis of the said Ext. No. A, the HUF property was mutually allotted amongst the coparceners of the said HUF and, thus, following the said settlement/arrangement, the property, mentioned in Schedule-'A', was allotted to the Defendant No. 2, while the property described in Schedule-'B' and Schedule-'C' were allotted to the Defendants Nos. 1 and 3 respectively. 5. The answering Defendants contended that the Plaintiff, despite having knowledge about mutation cases, mentioned hereinabove, did not prefer any appeal before the Revenue authority and as such, the Plaintiff's suit for cancellation of mutation, granted in favour of the Defendants, was barred by Section 154 of the Assam Land Revenue Regulation, 1886. The Defendants further averred that the suit was bad for non-service of notice under Section 80 of the Code of Civil Procedure ('Code of Civil Procedure') and Section 326 of the Assam Municipal Act. In the premises aforesaid, the contesting Defendants prayed for dismissal of the suit. 6. The Defendants further averred that the suit was bad for non-service of notice under Section 80 of the Code of Civil Procedure ('Code of Civil Procedure') and Section 326 of the Assam Municipal Act. In the premises aforesaid, the contesting Defendants prayed for dismissal of the suit. 6. The Defendant No. 4, i.e., the Circle Officer, also submitted a separate written statement contending, therein, that the suit was bad for want of notice under Section 80, Code of Civil Procedure. This Defendant averred that the mutation was granted in favour of the Defendants in accordance with the provisions of law. 7. Upon the pleadings of the parties, the learned trial Judge framed the following issues for decision: - (i) Is there any cause of action for the suit? (ii) Is the suit maintainable? (iii) Is the suit properly valued and stamped? (iv) Whether the Plaintiff has right, title and interest over the suit land? (v) Whether the mutation order dated 15.10.2004 and partition granted in favour of the Defendant No. 2 in respect of the Schedule-'A' land creating separate dags and patta is illegal and inoperative? (vi) To what relief/or reliefs, the Plaintiff is entitled to? (vii) Is the suit property belong to HUF? 8. In support of his case, the Plaintiff examined himself as PW1 and he was cross-examined on behalf of the Defendant Nos. 2 and 3. The Defendants did not examine any witness. 9. By the impugned judgment and order under appeal, the suit filed by the Appellant was dismissed resulting in this appeal. 10. We have heard Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the Appellant and Mr. R.L. Yadav, learned Counsel appearing for the Respondents and perused the record. 11. Mr. Sahewalla, learned senior counsel, assailing the impugned judgment and order, has submitted that the suit property is the self-acquired property of the Plaintiff and that the learned trial Judge committed error by holding the same to be a HUF property and also that the Defendants Nos. 1, 2 and 3, who were the sons of the Plaintiff, had acquired right, title and interest in respect of the said property by their birth. 1, 2 and 3, who were the sons of the Plaintiff, had acquired right, title and interest in respect of the said property by their birth. It is also submitted, on behalf of the Appellant, that the suit property was never a HUF property and that, in order to avoid family dispute/quarrel amongst his sons, the Appellant had allowed his sons to enjoy the property separately only for earning their livelihood and that there was no actual partition of the said property. It is further contended that, even if the property is treated to be a HUF or joint property then also, the Defendants, in view of absence of any partition, in accordance with law, were not entitled to get their names mutated and that the learned trial Judge wrongly decided the issue Nos. 4 and 7. In support of his contention, Sri Sahewalla, learned senior counsel, for the Appellant, has relied on the following decisions: - (1) Yudhistir v. Ashok Kumar (1987) 1 SCC 204. (2) P.N. Venkatasubramania Iyer v. P.N. Easwara Iyer AIR 1966 Mad. 266 . (3) Nani Bai v, Gita Bai AIR 1958 SC 706 . (4) P. Kaliappa Goundar and Ors. v. Muthuswamy Mudaliar AIR 1987 Mad. 24 . 12. Refuting the said argument, advanced on behalf of the Appellant, Mr. R.L. Yadav, learned Counsel, appearing for the contesting Respondents has submitted that, in view of the admission of the Plaintiff, in his cross-examination, that the suit land was inherited by him from his father as the only heir of his deceased father and the Plaintiff and his sons, being governed by the Mitakshara school of Hindu law, the Defendant Nos. 1, 2 and 3, by virtue of their birth as the sons of the Plaintiff, acquired right, title and interest in respect of the said property, inherited by their father as the surviving heir of their deceased grandfather, and, thus, the said inherited property became a HUF property and consequently the Defendants and their father became the coparceners in respect of the said HUF property. The learned Counsel further submitted that, vide Ext. No. 'A', which was a document regarding settlement/arrangement of family property, the HUF property was partitioned amongst the coparceners and that the Defendant Nos. 1, 2 and 3 obtained their specific share, as mentioned in the said document. The learned Counsel further submitted that, vide Ext. No. 'A', which was a document regarding settlement/arrangement of family property, the HUF property was partitioned amongst the coparceners and that the Defendant Nos. 1, 2 and 3 obtained their specific share, as mentioned in the said document. It is also submitted that the Plaintiff himself, in his cross-examination, admitted that he invited his friend, namely. Ram Nagina Singh (since deceased) and relative Sri B.K. Garodia for settlement of the family property and that as per the said arrangement (somjhota), the properties were allotted to the Defendants by mentioning their respective shares as per Ext. No. 'A'. Mr. Yadav, learned Counsel further submitted that the Ext. No. 'A' itself, the execution and correctness of which has neither been denied, nor challenged, clearly reveals that respective shares, in respect of the said property were allotted/given to the "Plaintiff, his sons and Sri Manturam Agarwal and that the recitals in the said Ext. No. 'A' indicates that the Plaintiff and the Respondents had amicably partitioned their property, in presence of the witnesses, namely, Sri B.K. Garodia, Ram Nagina Singh and Sri Arun Kumar Jala aforesaid. Mr. Yadav, learned Counsel, appearing for the contesting Respondents, also contended that the suit was bad for want of notices under Section 80 of the Code of Civil Procedure and the Section 326 of the Assam Municipal Act. In support of his contention, the learned Counsel has relied on the following decisions: - (1) Hari Shankar Singhania and Ors. v. Gaur Hari Singhania and Ors. (2006) 4 SCC 658 . (2) Mallika Datta Roy and Ors. v. Bidyut Kr. Deb (2004) 3 GLT 434. (3) Koksing v. Smt. Deokabai AIR 1976 SC 634 . 13. Having heard the learned Counsel for both the parties and perusing the materials on record, we find that the short question, involved in this case, is whether the suit property was a HUF property and if so, whether the property stood partitioned on the basis of the 'MoU' dated 9.9.2000, i.e., the Ext. No. 'A', thereby indicating the specific shares of the Respondent coparceners? 14. Admittedly, the Plaintiff and his sons are governed by the Mitakshara School of Hindu law. Under the Mitakshara law, property inherited by a Hindu from his father, father's father or father's father's father is ancestral property as regards his own male issues. No. 'A', thereby indicating the specific shares of the Respondent coparceners? 14. Admittedly, the Plaintiff and his sons are governed by the Mitakshara School of Hindu law. Under the Mitakshara law, property inherited by a Hindu from his father, father's father or father's father's father is ancestral property as regards his own male issues. Therefore, his son, grand son and great grand son acquire an interest in such a property from the moment of their birth and they become coparceners with their paternal ancestor immediately after their birth. It is pertinent to note that there is distinction between ancestral property, and separate property under the concept of Hindu coparcenery. Property inherited by a Hindu from his father, father's father or father's father's father is his ancestral property, whereas the property inherited by him from other relations is his separate property. In respect of ancestral property, the sons, grand sons and great grant sons become joint owners along with the persons inheriting the property and such right is acquired by birth and this was the essential feature of ancestral property under the Mitakshara law. However, Section 6 of the Hindu Succession (Amendment) Act, 2005 provides that, after the coming into effect of the said Act daughters are also entitled to get the same right in the coparcenery property as she would have had if she had been a son. 15. Section 8 of the Hindu Succession Act, 1956 has laid general rules of Succession in the case of males. 8. General rules of succession in the case of males - The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 16. 16. According to the Principles of Hindu Law - by Mulla (Sixteenth Edition) page 255-230 the property acquired in the following manner is separate property: - (1) Obstructed heritage - Property inherited as obstructed heritage (sapratibandha daya), that is, property inherited by a Hindu from a person other than his father, father's father, or father's father's father (see 218, 222 and 223 sub (2)]. (2) Gift - A gift of a small portion of ancestral movable made through affection by a father to his male issue is his separate property (v) [225]. As to gifts and bequests of separate property by a father to his sons see 223 sub (5). (3) Government grant - Property granted by Government to a member of a joint family is the separate property of the done (w), unless it appears from the grant that it was intended for the benefit of the family (x). (4) Property lost to family - Ancestral property lost to the family, and recovered by a member without the assistance of joint family property. See 232 below. Property acquired by a father by adverse possession is his separate property and not ancestral property (xi). (5) Income of separate property - The income of separate property, and purchases made with such income (y). (6) Share on partition. - Property obtained as his share on partition by a coparcener who has no male issue. (7) Property held by sole surviving coparcener. - Property held by a sole surviving coparcener, when there is no widow in existence who has power to adopt (z). (8) Separate earnings. - Separate earnings of a member of a joint family. (9) Gains of learning. -All acquisitions made by means of learning are declared by the Hindu Gains of Learning Act, 1930, to be the separate property of the acquirer. In the case of Yudhistir v. Ashok Kumar (supra), the Supreme Court referring to the view taken in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen and Ors. AIR 1986 SC 1753 observed - It would be difficult to hold that property developed on a Hindu under Section8 of the Hindu Succession Act, 1956 would be HUF vis-a-vis his own sons. In the case of Chander Sen (supra) one Ranjilal and his son constituted a Hindu undivided family. AIR 1986 SC 1753 observed - It would be difficult to hold that property developed on a Hindu under Section8 of the Hindu Succession Act, 1956 would be HUF vis-a-vis his own sons. In the case of Chander Sen (supra) one Ranjilal and his son constituted a Hindu undivided family. There was partial partition in the family by which the business was divided between the father and the son and thereafter, it was carried by a partnership consisting of the two. The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their share of income. The house property of the family continued to remain joint property. Thereafter, Ranjilal died leaving behind his son Chander Sen and his grand sons, i.e., the sons of Chander Sen. Chander Sen constituted a joint family with his sons. The credit balance in the account of late Ranjilal was shown by Chander Sen as his self property in his wealth tax return as well as the income tax return and not in the return filed on behalf of the family. This plea of Sri Chander Sen was disputed by the Wealth Tax Officer and the Income Tax Officer. In deciding the matter, finally, the Supreme Court, held that the sums standing to the credit of Ranjilal belonged to Chander Sen in his individual capacity and not the joint property. 17. The Plaintiff though claimed that he was the absolute owner of the suit property, being his self acquired property and not a HUF property, failed to substantiate the said claim by adducing sufficient evidence to show as to how or in what manner he had acquired the same as his self acquired property. In his cross-examination, the Plaintiff, while deposing as PW1, clearly stated that he was the only son of his father, who came to Assam 80 years ago and established a grocery business and that he did not know when his father had purchased the said land. He also stated that his father had constructed a two-storied building, the ground floor of which was R.C.C. He clearly stated that he had inherited the suit land from his father as his sole legal heir. He also stated that his father had constructed a two-storied building, the ground floor of which was R.C.C. He clearly stated that he had inherited the suit land from his father as his sole legal heir. Thus by saying that the suit land was inherited by him from his deceased father as a surviving male issue, the Plaintiff contradicted and negated his plea that the suit property was his self acquired property. There is nothing on record to show that the Plaintiff had acquired the suit property as his self acquired property. In the present case, the Plaintiff acquired the property as the sole surviving heir of his deceased father and not on partition. The property was never partitioned determining the shares of the Plaintiff and his deceased father in respect of the suit property. Had he obtained the property on the basis of partition, then after the death of his father, the property standing in the credit/share of his deceased father would have devolved on him under Section 8 of the Hindu Succession Act, 1956 and in that event, the said inherited property, i.e., the suit property would have been his self acquired property and not of joint Hindu family. Therefore, the fact of the above referred case and the fact of the case in hand as well as the mode of acquiring the properties in both the cases being different, the decisions held in the above referred cases do not help the Appellant. 18. Therefore, the Plaintiff, who inherited the suit property from his father as the sole legal heir and the Plaintiff, being governed by the Mitakshara law, by operation of law and the Defendant Nos. 1, 2 and 3 also being his sons, acquired equal right in respect of the suit property. Thus, the said Defendants, immediately after their birth, became coparceners of the said HUF property. Therefore, we find no force in the contention of the Appellant that the suit property is the self-acquired property of the Plaintiff and that his sons have no right, title and interest or share in respect of the same or that the Plaintiff had the right, title and interest over the suit property to the exclusion of his said sons. Therefore, we find no force in the contention of the Appellant that the suit property is the self-acquired property of the Plaintiff and that his sons have no right, title and interest or share in respect of the same or that the Plaintiff had the right, title and interest over the suit property to the exclusion of his said sons. In view of the above discussion and as admitted by the Plaintiff, we have no hesitation in holding that the suit property, having been inherited by the Plaintiff from his father and after the birth of the said sons of the Plaintiff, the Plaintiff and his said sons became coparceners of the HUF property, i.e., the suit property. Therefore, it stood established that the Plaintiff had no absolute right, title and interest, to the exclusion of his sons, in respect of the suit property and, thus, the question raised in issue Nos. 4 and 7 stood rightly answered in the negative i.e. against the Plaintiff. 19. Though the Plaintiff stated that he filed a case before the Circle Officer for cancellation of the mutation, granted in favour of the Defendant Nos. 1 to 3, he stated that he did not know the outcome of the proceeding. From the above, it transpires that the Plaintiff had knowledge about the mutation, as far back as in 2000, and his ignorance about the result of the objection raised by him, against the said mutation, indicates that he was not interested to pursue the matter and, thus, he allowed the continuance of the effect of the said order. Therefore, it can be gathered that the Plaintiff was not interested to take any positive steps for getting the mutation, granted in 2000, cancelled. As discussed above, failure of the Plaintiff to take appropriate steps for cancellation of the said mutation, at the appropriate time, leads to the inference that he accepted the said family arrangement as partition. 20. It is well settled that a coparcener's right to enjoy his share in the HUF property separately accrues to him only after partition. The ownership of a coparcenery property vests in the whole body of the coparcenery. A member of the coparcener is entitled to a definite share only after partition and until such partition takes place, their possession and enjoyment of the coparcenery property is common. The ownership of a coparcenery property vests in the whole body of the coparcenery. A member of the coparcener is entitled to a definite share only after partition and until such partition takes place, their possession and enjoyment of the coparcenery property is common. The person, ordinarily the father or other senior member, who manages the property of the joint family is called 'karta'. Till the time the members of the joint family remain undivided, the 'karta' is entitled to manage the family property. The coparcenery property can be divided on a partition. Every coparcener is entitled to a share upon such partition. On a partition between a father and his sons, each son takes a share equal to that of the father. Under the Mitakshara law partition is a numerical division of the property, i.e., defining the shares of the coparceners in the joint property. If the shares are definite, on the basis of an agreement between the parties or otherwise, the partition becomes complete. Partition is a severance of joint status. The necessary essence of partition is definite and unequivocal indication of the members of the joint family to separate himself from the family and enjoy his share separately. The intention to separate may be expressed either by declaration or by conduct and partition may take place orally also. Partition may also be affected by agreement between the parties. The effect of partition is dissolution of the coparcenery thereby allowing the members to enjoy their respective shares. 21. It is the plea of the contesting Defendants, that, on the basis of the Ext. No. 'A', i.e., the MoU aforesaid, the HUF property, in respect of which they were coparceners, was partitioned by a family settlement in presence of three responsible individual persons, namely, Sri B.K. Garodia, Sri Ram Nagina Singh and Arun Kumar Jala and that on the basis of the said partition they used to occupy the their respective shares and got the land mutated as per law. The Plaintiff also in his cross-examination admitted that the said family settlement was made in presence of Sri Ram Nagina Singh and Sri B.K. Garodia, whom he had invited for arriving at an understanding regarding the said property. He admitted that the respective shares as mentioned in the Ext. No. 'A' was allotted to his sons. The Plaintiff also in his cross-examination admitted that the said family settlement was made in presence of Sri Ram Nagina Singh and Sri B.K. Garodia, whom he had invited for arriving at an understanding regarding the said property. He admitted that the respective shares as mentioned in the Ext. No. 'A' was allotted to his sons. The Plaintiff, did not disclose that there were other coparceners or members entitled to claim share in respect of said property on the date of execution of the said Ext. No. 'A'. Though the contesting Defendants contend that the said Ext. No. 'A' is a document of the partition of the HUF property, the Plaintiff-Appellant's contention is that the said document is not a partition document in the eye of law and that the same was made only as an arrangement for peaceful enjoyment of the property and as such the Defendants acquired no exclusive right, title and interest in respect of the shares shown, against their names, in the said document. 22. Now, the moot question is whether the arrangement/settlement made by the said document, i.e., Ext. No. 'A' (MoU) amounted to partition of the HUF property aforesaid. 23. In the case of Hari Shankar Singhania and Ors. v. Gaur Hari Singhania and Ors. (2006) 4 SCC 658 , the Supreme Court while discussing the importance of family settlement/arrangement and its acceptability observed as follows: - 42. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family. 43. The concept of "family arrangement or settlement" and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc., should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. 43. The concept of "family arrangement or settlement" and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc., should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das v. Girjanandini Devi AIR 1966 SC 323 . 44. In Lata Khunni Lal v. Kunwar Gobind Krishna Narain (1911) 38 IA 87the Privy Council examined that it is the duty of the courts to uphold and give full effect to a family arrangement. 45. In Sahu Madho Das v. Pandit Mukand Ram AIR 1955 SC 481 (Vivian Bose, Jagannadhadas and B.P. Sinha, JJ.) placing reliance on Clifton v. Cockburn (1834) 3 My & K 76 and Williams v. Williams(1866) LR 2 Ch. 294 this Court held that a family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. It was held that: (SCR p.43) "[S]o 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, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement...." 46. The real question in this case as framed by the court was whether the Appellant-Plaintiff assented to the family arrangement. The court examined that "the family arrangement was one composite whole in which the several dispositions formed parts of the same transaction". 47. In Ram Charan Das v. Girjanandini AIR 1966 SC 323 this Court observed as follows: (SCR pp. 850 G-851 B) "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.... 47. In Ram Charan Das v. Girjanandini AIR 1966 SC 323 this Court observed as follows: (SCR pp. 850 G-851 B) "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 consideration of 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. With regard to the evidentiary value of a family settlement which has been acted upon, the Supreme Court referred to the following observation made in the case of K.K. Modi v. K.N. Modi (1998) 3 SCC 573 .- [A] family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to 1995 the memorandum of understanding has been substantially acted upon and, hence, the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed. (emphasis supplied) In view of the above, the Supreme Court, in the case of Hari Shankar Singhania (supra) observed: - Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements. 24. In the case of P. Kaliappa Gounder (supra), the Supreme court observed - Before we do the analysis of factual materials, we would like to recapitulate the concept of 'partition' of a joint family. The joint ownership of a thing is the right of two or more persons to possess and use it to the exclusion of others; and the thing, with regard to which there is the joint ownership, is called 'the joint property'. In this joint property, the joint owners do not own anything in specie and every joint owner has got right, title and interest over every piece and parcel of the joint property, subject to the qualification that the quantum of his share in the whole property stands defined in theory and not on ground. In this joint property, the joint owners do not own anything in specie and every joint owner has got right, title and interest over every piece and parcel of the joint property, subject to the qualification that the quantum of his share in the whole property stands defined in theory and not on ground. Though joint owners may be content with owning lands in common, yet, subsequently one joint owner or some joint owners may conceive the idea of owning the property referable to his or their share for himself or for themselves to the exclusion of the other or the others. This is the reason which motivates the move to get joint property partitioned. The legal term 'partition' is, applied to the division of lands or properties belonging to joint owners and the allotments amongst them of the parts referable to their shares so as to put an end to community ownership or joint ownership. Mayne says - In England ownership as a rule is single, independent and unrestricted. In India on the contrary, joint ownership is the rule and will be presumed to exist until the contrary is proved. While individual property appears to be the rule in the West, corporate property appears to be the rule in the East. Though passage of time and change of motions have shaken up this concept both in theory and in practice, yet, in our country and in particular in rural areas, joint ownership is allowed to persist by sufferance of custom and convenience until the bone of contention crops on. 25. In the above referred case, the Supreme Court further observed - Partition is the intentional severance of joint ownership by an unequivocal expression of an intention to bring out severance in the eye of law and further implementing it by actual division by metes and bounds. The essence of partition is that the joint ownership in respect of the property thereby resulting severally and individual ownership. 26. In deciding the case of P.N. Venkatasubramania Iyer (supra) the Supreme Court observed: - The power of the father of a joint family to divide family property at any moment during his life, provided he gives his sons equal share with himself, is well established. 26. In deciding the case of P.N. Venkatasubramania Iyer (supra) the Supreme Court observed: - The power of the father of a joint family to divide family property at any moment during his life, provided he gives his sons equal share with himself, is well established. The consent of the sons is not necessary for the exercise of that power, the right of the father to sever himself and the sons inter separate being part of the partriae potestas that was recognised by the Hindu law. As noticed in Principles of Hindu law by Mullah. 12th Edn. At page 493: If the partition is unequal and unfair it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid it after they attain majority. The partition will be good until it is set aside. The Supreme Court, in the above referred case, further observed: Under the Mitakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made, however, must be fair and equal. See ILR (1878)Mad. 317 and Venkatapathi Raju v. Venkatanarssimha Raju. Mayne's Hindu Law, 11th edn. 1950, pp. 547 and 548). This power of the father is exercisable also by the grandfather but with the qualification that he can only separate himself from his grandsons and not make a division between the grandsons inter se. (See Subbarani Reddy v. Chenchu Raghava Reddi AIR 1945 Mad. 327 and Mayne 11th edn., p. 548). If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition, therefore, will be good until it is set aside. It is not void and it is not without effect. 27. The partition, therefore, will be good until it is set aside. It is not void and it is not without effect. 27. In the case of Yudhistir (supra), the Supreme Court observed that under the Mitakshara school of Hindu law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. Under the law this status of the HUF property continues till the property is partitioned. 28. We have already noticed that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family, governed by the Mitakshara law, daughter of a coparcener also came to be a coparcener in her own right in the same manner as the son and she is entitled to get the same right as she would have had if she had been a son. As indicated earlier, there is nothing on record to find that, except the persons mentioned in the Ext. No. A, there were other coparceners or members, entitled to claim share in the said property. Therefore, it stands established that except the said allottees, mentioned in the Ext. A, there was none other to claim a share in the said property. 29. Keeping in mind the ratio, laid down by the Supreme Court in the above referred cases, it can be concluded that the family settlement/arrangement, made with a view to avoid disputes between the members of the family and for their peaceful living, should not be viewed as ordinary contract and lightly interfered or disturbed on technical grounds. 30. In deciding the question as to whether a particular family arrangement/settlement made, in respect of the enjoyment of such property, is a partition or not, intention of the member of the family and the follow up actions taken by the members are, also required to be considered. If it is found that the member(s) of the joint family acted upon such family arrangement/settlement asserting his exclusive right/title in respect of his share allotted by such settlement, without any objection from other members, then it could be presumed that the said settlement/arrangement was accepted by all the members as a partition of the property. If it is found that the member(s) of the joint family acted upon such family arrangement/settlement asserting his exclusive right/title in respect of his share allotted by such settlement, without any objection from other members, then it could be presumed that the said settlement/arrangement was accepted by all the members as a partition of the property. In the present case, the admitted plea of the Plaintiff, who was the 'Karta' of the HUF, was that, for avoiding quarrel, i.e., family dispute, amongst the member of the families of his sons, they were allowed to enjoy the property separately. On the basis of the said settlement (Ext. No. A), the Defendants got their names mutated in 2000, i.e., in the year of execution of the Ext. A itself and, thus, they acted upon the said MoU as far back as in 2000, i.e., immediately after the said arrangement. Therefore, it can be held that on the basis of the Ext. No. A, the said family property was partitioned amongst the members of the family aforesaid. 31. Learned senior advocate, appearing on behalf of the Appellant, drawing our attention to the Ext.'A' has submitted that as the Ext.'A' is not a registered document, under the provision of Section 17(1)(b) of the Registration Act, the same cannot be issued in evidence to show that partition was effected by the said unregistered document. 32. In the case of Nani Bai (supra) the Supreme Court examined the question as to whether the unregistered documents, i.e., Exhibit-P series, made by the father, i.e., the common ancestor giving his specific portions of his land, reserving a portion for his maintenance of his sons, could be used as evidence in support of claim of partition. In deciding the said question in affirmative, the Supreme Court observed - 13. But it was argued on behalf of the Appellants that those documents-exhibits-P series aforesaid are not admissible in evidence even for the limited purpose of showing separation in estate. The question, therefore, is whether those documents "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", within the meaning of Section 17(1)(b) of the Registration Act. No authority has been cited before us in support of this contention. No authority has been cited before us in support of this contention. Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title, has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy, has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduced the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of Section 17(1)(b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registrable under Section 17, and would, therefore, not come within the mischief of Section 49 which prohibits the reception into evidence of any document affective immovable property. It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose. 33. The Supreme Court further observed: The courts below have held that those documents are inadmissible in evidence as regular deeds of partition which they purport to be, in view of the provisions of the Registration Act. But those transactions have been used for the collateral purpose of showing that from that time, the three brothers became separate in estate, and evidencing the clear intention on the part of each one of them to live as separated members, each with one-third share in the paternal estate. In view of the above observations, made by the Supreme Court and the above discussions there is no difficulty in understanding that the MoU, i.e., the Ext. No. 'A' sufficiently indicates the clear intention of the Plaintiff and the Defendants, i.e., the father and his sons to live separately with their respective shares in the ancestral property, i.e., the HUF property. Therefore, taking the ratio of the above referred cases, the Ext. No. 'A', though not registered, can be accepted for the limited purpose of showing that the said coparceners had separated in respect of their ancestral estate, i.e., the suit property. Hence, we find no force in the contention of the Appellant that, for want of registration, the said document, i.e., Ext. 'A', cannot be used as evidence in support of the Respondent's claim of partition. Hence, we find no force in the contention of the Appellant that, for want of registration, the said document, i.e., Ext. 'A', cannot be used as evidence in support of the Respondent's claim of partition. The said document cannot be relied in evidence of the specific share of each coparcener following the partition of the HUF property but can be relied upon as proof of the fact that the parties have taken a decision to go for a partition and had acted upon such a decision. 34. In the light of the above, carefully perusing the Ext.A (MoU), i.e., the family settlement, we find that by the said settlement/arrangement the respective shares in the property were determined amongst the coparceners. From the Ext. No. 'A', it is found that the entire property was divided, giving specific share to each of the Plaintiff and his sons, who were the coparceners, thus, showing a separation amongst the coparceners. If the Ext. No. 'A', as pleaded by the Plaintiff, was made only for allowing the Defendant Nos. 1, 2 and 3 to enjoy the property for the limited purpose of earning their livelihood, there was no necessity for the Plaintiff to execute the Ext. No. 'A' in respect of the entire property and mention about his own share as well as the share of Sri Mangturam Agarwal. For avoiding family quarrel, he could have allowed the Defendant Nos. 1, 2 and 3 to occupy some of the specific properties. A careful perusal of the Ext. No. 'A' reveals that all minute details of the respective shares, given to the Plaintiff and his sons, including Sri Mangturam Agawal, thereby dividing the entire property, were mentioned in clear terms. The nature and the manner, in which the property was divided, indicate that the members of the HUF wanted to get separated by taking their respective shares. The subsequent events, i.e., mutation, obtained by the said sons, in respect of their immovable properties as mentioned in Ext. No. 'A', and the failure of the Plaintiff to take steps for cancellation of the mutation under the appropriate provision of law, supports the Defendants' contention that, by the Ext. No. 'A', the HUF property was partitioned. The Plaintiff in his evidence, given as PW1, stated that he came to know about the mutation of the names of the Defendants in 2000. No. 'A', the HUF property was partitioned. The Plaintiff in his evidence, given as PW1, stated that he came to know about the mutation of the names of the Defendants in 2000. The suit seeking right, title, interest and cancellation of mutation has been instituted in 2006. The above conduct on the part of Plaintiff and his sons, who got their names mutated in respect of their respective shares allotted vide Ext.A, clearly indicates that, they, by the Ext. No. 'A', intended to sever their joint status, i.e., the HUF status. Therefore, in the light of the above discussions, there is no difficulty in understanding that the said family settlement (Ext. No. A) was, in fact, a partition allowing the members to separately enjoy their respective shares in the family property. 35. In view of the above partition, the Plaintiff's right title and interest over the entire suit land (to the exclusion of his share as mentioned in Ext. No. 'A') got extinguished. Therefore, in our considered opinion, the issue Nos. 4 and 7 were rightly decided against the Plaintiff. 36. While deciding the issue No. 5 in the affirmative, i.e., against the contesting Defendants, the learned trial Judge held that the granting of mutation and creation of new patta and holdings in favour of the Defendant Nos. 1, 2 and 3 in respect of Schedule 'A', 'B' and 'C properties were illegal and that the same did not create any right/title in favour of the answering Defendants and other Defendants (members of the joint family). Mr. Yadav, learned Counsel, appearing for the contesting Respondents has submitted that, in view of the decisions rendered in issue Nos. 4 and 7 aforesaid, the issue No. 5 should have been decided in favour of the contesting Defendants and as such the findings of the learned trial Judge, with regard to issue No. 5 is contradictory to the decisions held in issue Nos. 4 and 7 and that, this Court exercising power under order 41, Rule 33, may pass appropriate order, by correcting the said findings. 37. In the case of Kok Singh (supra), the Supreme Court referring to order XLI, Rule 33 of the Code of Civil Procedure observed that the appellate court has power to pass any decree or to make any order which ought to have been passed or made and to make such further orders or decree. 37. In the case of Kok Singh (supra), the Supreme Court referring to order XLI, Rule 33 of the Code of Civil Procedure observed that the appellate court has power to pass any decree or to make any order which ought to have been passed or made and to make such further orders or decree. It was also observed by the Supreme Court that the High Court is competent to pass a decree for enforcement in favour of the Respondents, notwithstanding the fact that the Respondent did not file any appeal. Order XLI, Rule 33 reads as follows: - Power of court of appeal The appellate court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have filed any appeal or objection, [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]" Provided that the appellate Court shall not make any order under Section35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.] 38. In view of the above, though no appeal or objection was filed by the Defendants against the findings on issue No. 5 the appellate court has the power to make any order which ought to have been passed or made. 39. In the case of Mallika Datta Roy (supra), a learned Single Judge of this Court referring to Order 21, Rule 24 Code of Civil Procedure, observed that the appellate court instead of remanding the matter to the trial court ought to have decided the issue inasmuch as the materials and documents necessary for such determination were available before the appellate court. Order XLI, Rule 24Code of Civil Procedure reads as follows: - Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. 40. We find that the decision, rendered by the learned trial Judge, in respect of issue No. 5 aforesaid is not in conformity with the decision held in deciding the of issue Nos. 4 and 7. The decision in respect of issue No. 5 should have followed the findings and decisions held in issue Nos. 4 and 7, inasmuch as the contesting Respondents could establish, that the suit property was partitioned as per the terms of Ext. 'A', and that the Plaintiffs exclusive right, title and interest over the entire suit land got extinguished following the said partition. Therefore, the granting of mutation and separate patta, etc., in favour of the Defendants, in respect of their respective shares as indicated in Ext. 'A' above, was not illegal. Hence, the said decision given by the learned trial Judge is liable to be interfered and reversed. Therefore, in order to render substantial justice, we have no hesitation in holding that, in view of the said partition, the mutation in favour of the contesting Defendants was rightly granted by providing separate dag number and patta number etc., in respect of the property mentioned in Schedule-A to the plaint. Accordingly, we reverse the findings and the decision given by the learned trial Judge in respect of issue No. 5 and, thus, the issue No. 5 stands decided in favour of the contesting Defendants. The Defendants/Respondents contended that the suit was bad for want of notice under Section 80, Code of Civil Procedure and Section 326 of the Assam Municipal Act and hit by Section 154 of the Assam Land and Revenue Regulation, 1886. Section 154 of the Assam Land and Revenue Regulation, 1886 bars suit in respect of matters relating to preparation of records of right, mutation, etc. As the Plaintiff's suit is based on title the jurisdiction of the civil court is not ousted. Therefore, we find no infirmity in the decision of the learned trial Judge in this regard. 41. Section 154 of the Assam Land and Revenue Regulation, 1886 bars suit in respect of matters relating to preparation of records of right, mutation, etc. As the Plaintiff's suit is based on title the jurisdiction of the civil court is not ousted. Therefore, we find no infirmity in the decision of the learned trial Judge in this regard. 41. The learned trial Judge held that the suit was bad for want of notice under Section 80 of the Code of Civil Procedure ('Code of Civil Procedure') and Section 326 of the Assam Municipal Act. Carefully reading of the pleadings of the Plaintiff and the reliefs claimed by him, it is found that the Plaintiff has not sought any relief against the Government or the Municipality or against their officers. In fact, the Plaintiff has prayed for a declaration that the mutation and the separate municipal holding number obtained by the contesting Defendant Nos. 1 and 2 were illegal and inoperative. A decision in this regard is consequent upon the decision in respect of Plaintiff's claim regarding declaration of his right, title and interest over the suit land. As the Plaintiff did not seek any relief against the State or the Municipality, no statutory notice was required to be issued. Therefore, in our considered opinion, the learned trial Judge committed error by deciding that the suit was bad for want of notices under Section 80, Code of Civil Procedure and Section 326 of the Assam Municipal Act. 42. There is no dispute regarding existence of cause of action and payment of proper court fee. Therefore, we find no necessity to disturb the findings of the learned trial Judge in respect of issue Nos. 1 and 3. 43. In view of the above discussion, we find no merit in this appeal requiring interference with the impugned judgment and decree. Consequently, this appeal, with the observations as indicated above, stands dismissed. However, in the facts and circumstances of the case, we leave the parties to bear their own cost. Return the record of the learned trial court. Appeal dismissed