JUDGMENT Mr. K. Kannan, J. (Oral):- The following substantial questions of law arise for consideration in the second appeal:- i) Whether the plaintiffs had any subsisting right to the property during the lifetime of the mother to institute the suit and question the decree that was allowed between the mother and her grandchildren through another daughter? ii) Whether the decree allowing for the properties to be taken by the grandchildren through one of the daughters was a family settlement, as pleaded and hence, did not require to be registered? iii) Whether the grandchildren through the daughter have any pre-existing right that could allow for devolution even without registration of consent decree suffered by the mother? 2. Before I begin my discourse on the points raised, I must observe that it had been a long time practice of this Court to admit second appeal without framing any substantial question of law. Later, when the law was such a procedure was mandatory, it has been supplanted by a practice of lawyers appearing for appellants to frame the substantial questions in a separate memorandum and the Court placing it on record. We shall remind ourselves that it is again a wrong procedure. It is the Court’s duty to elicit the questions of law, formulate them and place them on record and direct the attention of the counsel to address arguments on the formulated questions. This preface is to govern our own judicial procedure and it is expected that the bar assists the Court in framing substantial questions of law and apprise itself about the formulations before the arguments are addressed. 3. The second appeal is at the instance of the defendants against whom there was a suit filed for a declaration that the decree allowing for the properties to be in the ownership and possession of the grandchildren of Dhapan (mother of plaintiffs) was brought about by fraud and not binding. There was a prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs’ 2/3rd share on a plea made by the plaintiffs that they were the owners of the property to a 2/3rd share by a gift by their mother at the time of their respective marriages. There was a prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs’ 2/3rd share on a plea made by the plaintiffs that they were the owners of the property to a 2/3rd share by a gift by their mother at the time of their respective marriages. The defendants, who were the mother, sister and sister’s children of the plaintiffs, entered a contest denying that the plaintiffs had any locus standi to file the present suit and that there had been no oral gift in favour of the plaintiffs by the mother-6th defendant. It was also contended that the suit properties had been the subject of a decree in Case No.438 of 1979 in favour of the grandchildren described as defendants 2 to 5. 4. The suit had gone for a trial on the contentions raised by the parties including an issue of whether the decree was null and void and liable to be set aside in the manner contended by the plaintiffs. The maintainability of the suit in the present form was also taken as an issue for consideration. The trial Court found that the plea that the property had been settled in their favour was not established and the Court also observed with reference to the khasra girdwaris that they were in the names of the defendants 2 to 5 and 7 and the plaintiffs could have no concern whatsoever with it. However, taking up the issue of locus standi of the plaintiffs, the Court observed that the defendants had not shown as to how the plaintiffs did not have a locus standi. The trial Court predominantly went on the admission made by the mother in the written statement admitting to the right and title of the grandchildren and dismissed the suit. In appeal filed, through a judgment which is as cryptic and laconic, the appellate Court relied on a judgment of the Supreme Court in Kuppuswami Chettiar Versus A.S.P.A. Arumugam Chettiar and another-AIR 1967 Supreme Court 1395 that a decree passed suppressing an important fact would be vitiated and that the material factor of existence of two daughters not having been set forth in the written statement filed by the mother in the earlier suit constituted the vitiating circumstance and set aside the judgment. Taking up the issue of the maintainability, the appellate Court held that the daughters had a right and interest in the property and at any rate, the suit was maintainable. 5. The plaintiffs, who sued to challenge the decree passed in Civil Suit No.438 of 1979 allowing for the right to be asserted by the grandchildren were aware that such a relief was possible only if they could establish their own subsisting interest in the property. They had, therefore, a plea to make in suit, which was essential, that the properties had been gifted orally by their mother at the time of respective marriages of their three daughters and the plaintiffs together were entitled to a 2/3rd share in the properties. Surprisingly at the trial, there was no serious attempt to prove the marriage settlements. Indeed, there could be no oral gifts in the eye of law, for, transfer of property was required to be made only through an instrument in writing and registered in the manner required under Section 17 of the Registration Act. There is no room available for a claim to property by oral gift for Hindus. A plea of oral gift on the basis of which suit was filed was on a slippery ground and the suit should have been rejected on a fundamental premise of nonmaintainability of the suit at the instance of the plaintiffs. Unfortunately, the trial Court did not address the issue properly but made a statement that the defendant did not show as to how the plaintiffs had no locus standi and the appellate Court answered the issue by saying that the plaintiffs were the daughters of 6th defendant-mother and, therefore, the suit was maintainable. 6. I would find the approach of the courts below to be cavalier and not oriented to any judicial principles. Cases are not decided merely on proximity of relationship between parties and that a suit could be filed by a daughter against the mother. What was essential to be seen was whether the plaintiffs had any subsisting interest that could be a subject of adjudication by a challenge brought about to a transaction by the mother. In my view, the property, which admittedly originally belonged to the father Mam Raj, on his death in the early 1940s, fell to be succeeded as the widow’s estate by his widow Dhapan-the 6th defendant. In my view, the property, which admittedly originally belonged to the father Mam Raj, on his death in the early 1940s, fell to be succeeded as the widow’s estate by his widow Dhapan-the 6th defendant. In the scheme of Mitakshara law governing succession in the absence of sons, the first heir was the widow. The daughter was the next in the order of succession if the widow was not there. Daughters did not inherent till all the widows were dead (Mulla’s Hindu Law, Volume- I, 21st Edition, 2010 page 145). The widow’s estate of what Dhapan’s held enlarged to an absolute estate on the coming into force of the Hindu Succession Act by virtue of Section 14(1). When therefore, the whole property belonged to the mother, the daughters had merely a chance of succession called in legal parlance as spes successionis. The plaintiffs could not have, therefore, maintained the suit as persons, who had no subsisting right to challenge any transaction which the mother entered into. If the oral gift was not approved by both the courts below, the shortest exist from the litigation was for the Court to hold that no other relief was necessary to be granted. The issue of whether the decree was valid or binding did not simply arise, for, the plaintiffs were themselves not parties to the suit and the grant of a declaration that a decree passed between their mother and grandchildren were null and void was not required to be answered at all. It is fundamental principle that a decree can bind only parties to the suit except in three known situations of admiralty, succession and insolvency jurisdictions. Only the said three types result in judgments in rem and in all other situations, they are judgments in personam. Inevitably, the decree allowing for the grandsons to assert a claim to the property was not a decree which the plaintiffs had a locus standi to question, so long as there was no entitlement to the property to the plaintiffs by virtue of the alleged oral gift. 7. The suit which was dismissed was on a finding that the family settlement was valid. I cannot go as far as to uphold the validity of the settlement on the ground that the mother accepted the family settlement in the manner canvassed by the appellant. 7. The suit which was dismissed was on a finding that the family settlement was valid. I cannot go as far as to uphold the validity of the settlement on the ground that the mother accepted the family settlement in the manner canvassed by the appellant. The issue of whether it would require to be registered or not has come in situations where there were disputed claims to the property which were sought to be quelled through an amicable settlement. The law that accords sanctity to family settlement has therefore arisen in situations, rights of parties amongst the shares in Hindu Joint families have been considered. The learned counsel for the appellants has brought before me several judgments which have upheld family settlements and views expressed diluting the rigors of a written instrument and registration. I will merely state them for completion of consideration as all the points which were addressed through pleadings and brought before the courts below, but not as matters which are necessary for the disposal of this appeal. Kale and others Versus Deputy Director of Consolidation and others- 1976(3) SCC 119 was probably the fulcrum on which the entire jurisprudence of family settlement has come about. The Supreme Court was considering a case of a family settlement between persons, who were entitled to shares in the property and the manner in which the rights were adjusted. Referring to its own ruling in a S. Shanmugam Pillai Versus K. Shanmugam Pillai- (1973) 2 SCC 312 , the Court held that the family properties and family peace among the close relations were settled through family settlement amicably. The Supreme Court observed that it would be reluctant to disturb the same. Referring to the questions raised that arose for consideration, the Court said that family arrangement could be made even orally. It could be even issues of doubtful claims but there must be at least some semblance of claims. 8. A widow, who inherits the property from husband and who holds it absolutely, gives no room to a maternal grandson to seek a claim nor was even an effort made at the trial to show that the grandsons had any semblance of right in the property otherwise than through the decree. 8. A widow, who inherits the property from husband and who holds it absolutely, gives no room to a maternal grandson to seek a claim nor was even an effort made at the trial to show that the grandsons had any semblance of right in the property otherwise than through the decree. If the grandmother had allowed for a transfer of interest in the property, then if the persons in whose name the transfer was made already had a subsisting interest, a decree per se would operate to acknowledge such title. If the grandmother was the absolute owner and she was creating a transfer of interest on an alleged acknowledgment that she had recognized her grandchildren to be the owners through a family settlement, then such settlement which creates an interest for the first time would require to be registered. It is a repeated theme in our courts that the parties resort to collusive action of decrees which do not obtain any validity and get to be impeached by the suits filed by other members of the family. There are any number of decisions which hold that a decree which creates an interest in the property for the first time to a person, who did not already have a right would require to be registered and a transfer of interest cannot take place through a decree itself. We have not learnt our lessons but this is a vexed subject time and time again in our courts and subordinate courts merely act as mute participants by granting decree and adding up to the number of disposals. It gives no credit to the institution of justice to be allowing for decrees which are meaningless. This point was brought out in a judgment of the Supreme Court in Bhoop Singh Versus Ram Singh Major and others-1995(5) SCC 509 that held that the compromise decree or a consent decree which purports to create right in the property with no pre-existing right to one party was not valid to create a transfer of interest if it was not registered being against Section 17 of the Registration Act. A still earlier ruling in K. Raghunandan and others Versus Ali Hussain Sabir and others- (2008) 13 SCC 102 also held that a decree which purports to create an interest for the first time that remains unregistered shall not be valid. A still earlier ruling in K. Raghunandan and others Versus Ali Hussain Sabir and others- (2008) 13 SCC 102 also held that a decree which purports to create an interest for the first time that remains unregistered shall not be valid. Bhoop Singh (supra) was doubted in a still later judgment of the Supreme Court in Bhupathi Versus Ram Singh- 2009(13) SCC 22 where a two member Bench has referred to a larger Bench for consideration of the correctness of the judgment in Bhoop Singh (supra), but even without such a doubt expressed, K. Raghunandan (supra) itself is an answer to the issue that a compromise decree that acknowledges a right to the party, who did not previously have any pre-existing interest, cannot secure a right without registration of the compromise. 9. The learned counsel for the appellants cites before me that the Court will have power to uphold oral partitions. That is simply not the issue before this Court. There is no prohibition under law for members of a family to partition the property orally. The partition does not result in transfer within the definition of ‘transfer’ under the Transfer of Property Act and it is specifically excluded. Consequently, an oral adjustment of rights through partition does not require to be written at all. However, there are two important propositions that have emerged in this area. If a partition is brought about through an instrument which contains the bargain between parties, it is required to be written on appropriate stamp papers and duly registered. If partition, on the other hand, is oral and a list is prepared as a fait accompli, then such an instrument, which is in the nature of an acknowledgment of an oral partition, does not require registration. Several decisions which are cited before me one after another do not dilute the proposition which I have outlined above. Mukanda Versus Kura Ram and others-2003(2) PLR 198 and Khushi Ram and others Versus Nawal Singh and others, [2009(2) Law Herald (P&H) 1244] : 2010(5) RCR (Civil) 705 relate only to issues of an oral family settlement or the settlement which the Court recognizes as valid. Mukanda Versus Kura Ram and others-2003(2) PLR 198 and Khushi Ram and others Versus Nawal Singh and others, [2009(2) Law Herald (P&H) 1244] : 2010(5) RCR (Civil) 705 relate only to issues of an oral family settlement or the settlement which the Court recognizes as valid. In the latter judgment, the Court was considering the case of a decree suffered by the sister in favour of her brothers after a family settlement after a dispute 2 years earlier and found by the Court as not requiring registration since it was an issue of an attempt to quell family dispute between persons, who had some semblance of rights. I have already observed in this case that grandchildren cannot have even a semblance of right during the grandmother’s lifetime. Like the plaintiffs, they also had merely a chance of succession, if all the daughters had pre-deceased the grandmother. Otherwise an acknowledgment of a right by the grandmother to the grandchildren cannot operate to create any transfer of interest. It is a settled law that title to immovable property cannot be transferred by mere admission. (See. Ambika Prasad Thakur and others Versus Ram Ekbal Rai and others- AIR 1966 SC 605 ). The settlement which the defendants were propounding, namely, a decree granting to them a right would stand as a decree for the plaintiffs in the said suit, to whatever circumstance that they may think they could use to it, but as a principle of law, I would only hold that the decree does not secure any particular legal right in the property. 10. Having found the suit to be not maintainable and that the suit was liable to be dismissed, I need not have answered this issue but I have allowed for this exposition to go in order that I answer all issues which are raised in suit. 11. During the time of the pendency of the suit and at the trial, the mother was still alive. The mother has preferred an appeal along with her grandchildren and the sister of the plaintiffs, Girdwari, challenging the judgment of the appellate Court. At least, till the appeal was filed before this Court, the grandmother had been litigating against the plaintiffs. On her death, during the pendency, the Court has merely recorded the fact of death and has held no steps are necessary. At least, till the appeal was filed before this Court, the grandmother had been litigating against the plaintiffs. On her death, during the pendency, the Court has merely recorded the fact of death and has held no steps are necessary. What consequence it would make to her estate is not a matter that is decided in this suit. I have stated this to stave clear of any apprehension of either of the parties that this litigation traverses beyond what was bargained for by the respective parties. 12. The judgment and the decree of the lower appellate Court are set aside although for different reasons and the appeal is allowed, but subject to the observations made above. ---------0.B.S.0------------