JUDGMENT Hon’ble Zaki Ullah Khan, J.—The instant second appeal has been preferred against the judgment and decree dated 6.11.1987 passed by the II-Additional Civil Judge, Faizabad, allowing Civil Appeal No. 32 of 1987 (Daya Ram v. Babu Ram). The First Appellate Court has allowed the appeal preferred against the judgment and decree dated 13.1.1987 passed by Munsif Haveli, Faizabad, bearing Civil Suit No. 219 of 1985. The trial Court decreed the suit in part. 2. Learned counsel for the appellants raised the substantial questions of law to be decided by this Court. Substantial questions of law raised by the learned counsel for the appellants are as under : (a) Whether there can be a re-partition of the joint property at the instance of a separated member of a Hindu co-parcenery ? (b) Whether the ‘Iqrarnama’ set up by a party could be read in evidence even though the same was not registered ? (c) Whether a separated son can claim a share in the share of the father who was living with his other son jointly since long before his death ? (d) Whether in a partition suit all the co-sharers should be impleaded ? In the present case, the mother of the parties was alive but was not impleaded as party, though definitely she had share. (e) Whether there can be a fresh division of the portions of the parties in a dwelling house which was partitioned long before ? (f) Whether the suit for the portion of a grove will be in Civil Court ? 3. Learned counsel for the appellants argued that all the questions are very material and these are substantial questions of law and the order passed by learned First Appellate Court suffers from gross illegality and infirmity. The appellant was defendant in original suit No. 219 of 1985, which was decreed in part and partly it was dismissed. The trial Court has partly decreed the suit regarding land which was allocated in defendant share, which has been demarcated in the Commissioner’s map paper No. 11C/2, which is in southern side of the appellant-defendant grove and the appellant was granted half of the share of the portion. The trial Court has specifically ordered that in southern portion of the grove, the respondent/plaintiff has no share and the suit was dismissed regarding that share. The trial Court has specifically ordered that in southern portion of the grove, the respondent/plaintiff has no share and the suit was dismissed regarding that share. Aggrieved by the decree and order, he preferred the civil appeal before the II-Additional Civil Judge, Faizabad, and the II-Additional Civil Judge, Faizabad vide order dated 6.11.1987 allowed the appeal and set aside the order dated 13.1.1987 passed by the lower Court and he passed the order that respondent/plaintiff shall be allocated half of the share in the disputed property and final decree be prepared accordingly. 4. During the arguments before this Court in the second appeal, most important question is that whether a re-partition of the joint property at the instance of separated member can take place because both the parties during trial admitted that initially there was a partition and respondent/plaintiff was allocated share in north of the grove of the appellant-defendant, which has been marked in the Commissioner’s map 11C/2. The factual matrix is not to be discussed here but the important question is that whether a second partition can take place. On the contrary, respondent-defendant was of the view that initial partition was not a partition as it was the ascertainment of share in the Hindu coparcenery between father and his two sons and after the death of father the division of the remaining portion is must and from the share of father each of them will be given half share, therefore, the previous partition, if any, will not hit the matter. The second and third questions of law framed by the appellant will not create hurdle in partition because the appellant was taking care and looking after his father. The appellant has raised fourth question i.e. mother is also co-sharer in the property of father but she was not impleaded as party, therefore, the suit was bad for non-joinder of the necessary party and accordingly fresh partition of the portion of dwelling house cannot take place. Therefore, in all, there are only two debatable questions of law involved, one relating to re-partition and whether that agreement will cover the separate share for father. There is also one other question related to this query is that whether there can be fresh division only regarding portion of dwelling house apart from previous partition. Therefore, in all, there are only two debatable questions of law involved, one relating to re-partition and whether that agreement will cover the separate share for father. There is also one other question related to this query is that whether there can be fresh division only regarding portion of dwelling house apart from previous partition. The second important legal question is that when the respondent-plaintiff claimed before the trial Court that he wants a partition and he claimed regarding the share allocated to father then why the mother who was living then was not impleaded as party ? 5. Learned counsel for the appellant-defendant has cited judgment of Hon’ble the Apex Court in the case of Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and others, AIR 1976 SC 1 , in which Hon’ble the Apex Court has held as under : “A partition effected between the members of Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter-vivos cannot be lightly set aside.” 6. In para - 19 of the aforesaid case, the Hon’ble the Apex Court has held as under: “Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.” 7. Learned counsel for the appellant-defendant has also relied on judgment of Hon’ble the Apex Court in the case of Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others, AIR (38) 1951 SC 120, in which, “it has been held that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.” In para 7 of the said judgment the Hon’ble Supreme Court held as under : “The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is—and it is nothing more than a rule of practice —that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact(1). The gist of the numerous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas (2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3). The observations are as follows: “But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when(1) vide Lord Atkin’s observations in W.C. Macdonald v. Fred Latinmer, AIR 1929 PC 15, 18. (2) [1947] A.C. 484. at p. 486.(3) vide Saraveeraswami v. Talluri, AIR 1919 PC 3’2. 785 estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their evidence is given.” 8. Learned counsel for the appellant-defendant has also cited on the decision of Hon’ble the Apex Court in the case of Saygo Bai v. Cheeru Bajrangi, AIR 2011 SC 1557 . Learned counsel for the appellant-defendant has also cited on the decision of Hon’ble the Apex Court in the case of Saygo Bai v. Cheeru Bajrangi, AIR 2011 SC 1557 . In para 10 of the said judgment the Hon’ble Supreme Court held as under : “We are not satisfied on the appreciation of evidence by the lower Courts. We have gone through the evidence of the appellant and the other witnesses. She has very specifically stated that after the marriage till the children were born, her relationship was cordial with her husband. Thereafter, the respondent brought a second wife, namely, Gulab Bai at village Chalani where she was residing in her matrimonial home. She was very specific in stating that when the husband brought the second wife, he declared that he would not keep the appellant and started ill-treating her and threw her alongwith children out of the house. In her cross-examination, she admitted that on her husband’s request she was not prepared to go to his house. This question was put to her in a very tricky manner. It was not stated as to at what point of time the husband came to take her back. She has also stated in her cross-examination that her children were with her but for the last one year they were with the respondent. She also admitted very fairly that the respondent was educating the children. She also asserted that for the last 4 years her entry to the house of her husband was stopped. It is true that in paragraph 13 of the cross-examination she had stated that she had not been to the house of the non-applicant (respondent herein) for 4-5 years and then the non-applicant i.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on this so-called admission to hold that she had abandoned her husband for 4-5 years and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. All the Courts below have ignored all her evidence and chosen to rely on two lines in paragraph 13 of her cross-examination. In our opinion, this was wholly perverse appreciation of evidence. The Courts have also made a point that she did not call for a Panchayat and, therefore, have held against her. We do not understand the implication of this. Even if she did not call a Panchayat, it did not mean that the respondent was justified in throwing her out of the house and getting married second time.” 9. Learned counsel for the appellant-defendant has also cited a judgment in the case of Jagbir Sharma v. Babli, 2002 AIR SCW 2686, in which Hon’ble the Supreme Court held as under : “Evidence led by parties not considered objectively. Reasons given by trial Court not discussed. Manner adopted by appellate Court not commendable. Order set-aside and matter remitted.” In para 5 of the said judgment the Hon’ble Supreme Court held as under: “Suffice it to state that on a plain reading of the judgment of the High Court, it is clear that the Court while deciding the first appeal neither considered the evidence led by the parties objectively nor has discussed the reasons stated in the trial Court judgment for accepting the case of the appellant. The High Court appears to have proceeded on the assumption that a mother can never be cruel towards her children. The appeal has been disposed of on some general discussions without considering the case of the parties on merits. We are unable to commend the manner in which the first appeal has been disposed of. We have avoided delving further into the merits of the case pleaded by the parties lest it should affect any of them when the decree is reconsidered by the High Court.” 10. We are unable to commend the manner in which the first appeal has been disposed of. We have avoided delving further into the merits of the case pleaded by the parties lest it should affect any of them when the decree is reconsidered by the High Court.” 10. Replying to the arguments, learned counsel for respondents-plaintiffs submitted that suit bearing No. 219 of 1985 (Daya Ram v. Babu Ram) was filed for partition of the house shown with letters ABIE in the commissioner”s report and the Sahan land shown as M B A J K L in the Commission report dated 25.5.195. 11. Appellant-defendant appeared before the Court below and filed written statement and admitted that the plaintiff-respondent and the appellant-defendant are the real brothers and also admitted that entire land in question belongs to their father. Appellant-defendant also admitted that half of the share in the house is of the respondent-plaintiff. 12. During the life time of the father of appellant-defendant as well as respondent-plaintiff no partition was done. Only some portion of the house was given to the respondent-plaintiff to live alongwith his family members, in which the respondent-plaintiff is living with his family. 13. After the death of father of the appellant-defendant as well as respondent-plaintiff, when the appellant-defendant denied the share of the respondent-plaintiff in the house as well as in other property, the dispute arose which necessitated to file the suit before the trial Court for partition of the house. 14. The witnesses D-2 and D-1 admitted the share of the respondent-plaintiff in the parental house but the trial Court dismissed the suit of respondent-plaintiff regarding share in house and thus ousted the respondent-plaintiff to live in open sky. 15. Learned counsel for the respondent-plaintiff further reiterated that on the ground above, the trial Court allowed the suit in part by giving half share of the land shown as M B A J K L, however, the suit was dismissed regarding the portion marked by the Commissioner’s letters A B I E. Learned counsel pointed out that at no point of time the appellant-defendant has ever denied about the share of the respondent-plaintiff in the house. On the contrary, he admitted the portion of the respondent-plaintiff in the house, therefore, the decree of the learned trial Court is liable to be set aside as no decree can be passed against the admission. On the contrary, he admitted the portion of the respondent-plaintiff in the house, therefore, the decree of the learned trial Court is liable to be set aside as no decree can be passed against the admission. The prayer sought has to be allowed or denied in toto, it cannot be considered in part and, therefore, the First Appellate Court was rightly set aside the order passed by the trial Court. The appellant-defendant is trying to give impression against the pleadings and admission made on record. The father has given portion of the house, it cannot be said that it was partitioned between the parties, although, the suit was decreed in part but the appellant-defendant did not challenge the findings of the trial Court dated 13.1.1987 by filing the civil appeal against that portion of order which was against his interest, whereas the learned First Appellate Court decreed the entire suit by setting-aside the order passed by the trial Court by way of order in appeal. 16. Learned counsel for the respondent-plaintiff further pleaded that in case this Hon’ble Court allowed the instant appeal, the respondent-plaintiff will be ousted from house having no room to live and will be bound to live in open sky as the respondent-plaintiff has no house except the ancestral house. Not only this but also the share of respondent-plaintiff is admitted at every stage by the appellant-defendant as well as the defendant witnesses. 17. During life time of father, there was no partition between the brothers (i.e. Babu Ram appellant-defendant and Daya Ram, respondent-plaintiff), however, father has given some portion of house to his sons to live alongwith their family members, which is no manner can be said to be a partition in the house or property. When there is no partition, the second partition does not arise. The appellant-defendant has not annexed any documentary proof regarding partition of the house. 18. During pendency of the instant second appeal the sole respondent-plaintiff Daya Ram died and in his place his sons and legal heirs have been substituted as respondents-plaintiffs. 19. Learned counsel for the respondents-plaintiffs has cited reliance on the decision of this Court in the case of Harey Krishna Agrawal and others v. Jairaj Krishna (D) and others, 2013 (31) LCD 1593. In paras 39 and 40 of the said judgment this Court held as under : “39. 19. Learned counsel for the respondents-plaintiffs has cited reliance on the decision of this Court in the case of Harey Krishna Agrawal and others v. Jairaj Krishna (D) and others, 2013 (31) LCD 1593. In paras 39 and 40 of the said judgment this Court held as under : “39. So far as right of defendants to challenge the judgment and decree of T.C. even though had not contested the suit by filing written statement, counsel for respondent could not show any statutory prohibition or dis-entitlement on their part in challenging final decision in suit, even if they did not contest the suit by participating before T.C. Not only this, if such an appellants can demonstrate that despite non-filing written statement, sill there is/are manifest error, illegality etc. in the judgment and decree passed by Courts below, on account whereof the same are unsustainable or have resulted in a manifest grave injustice, in violation of some legal principle or statutory provision etc., I find no bar or disability on their part in challenging the judgment and decree of T.C. Or LAC on merits also. 40. Accordingly the Issue No. 2 is answered in affirmative, i.e., in favour of defendants-appellants holding that not only they can file appeal but contest the matter on merits also despite, they had not filed written statement or led evidence before T.C. The only restriction would be that these appellants will have to confine to the record of proceedings and cannot be allowed to lead any evidence or bring a new fact before Appellate Court. They also cannot be allowed to fill in the gap at this stage.” 20. A co-ordinate Bench of this Court (Supra) has also held in paras 48, 49 and 52 as under : “48. The intention to break joint family by effecting partition in respect of joint family property has always been considered with great respect, where amicably and peacefully, interacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing. 49. In Appovier v. Ramasubba Aiyan, (1866) 11 MIA 75, Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai v. Sadashiv Dhundiraj, (1916) 43 IA 151. It can be given effect, orally, as also in writing. 49. In Appovier v. Ramasubba Aiyan, (1866) 11 MIA 75, Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai v. Sadashiv Dhundiraj, (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided. 52. Further whenever there is a partition, the presumption is that it was a complete one both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.” 21. I have gone through the submissions raised by learned counsel for the appellant-defendant as well as learned counsel for the respondents-plaintiffs and perused the case law cited by the respective parties in support of their contention. 22. The main question is that whether re-partition can take place or not. It is an admitted fact before the trial Court that oral family partition took place between the parties and father’s share remained with the appellant-defendant whereas the respondent-plaintiff was given another share. In addition, advantage was given as per agreement between the parties to the appellant-defendant because he was caring his father and looking after his livelihood. At that time, respondent-plaintiff remained silent and accepted the family verdict but subsequently after the death of his father he staked his claim for additional share which was allocated to the portion of the appellant-defendant in lieu of the services he rendered to his father. The plea has been substantiated by the fact that in Hindu co-parcenery, every co-parcener member has got equal share but equal share was not given to the respondent-plaintiff, on the contrary, differential treatment took place. The plea has been substantiated by the fact that in Hindu co-parcenery, every co-parcener member has got equal share but equal share was not given to the respondent-plaintiff, on the contrary, differential treatment took place. Whatever may be the reason, the respondent-plaintiff, alleged that the distinction should be scraped of and he should be allocated an equal share. The other point is that even, if, the partition took place, it was not effected with respect to the dwelling house and the respondent-plaintiff ought to have been given share in dwelling house also as far as factual matrix is concerned. 23. The only legal question remained is whether a partition which was effected between the parties can be re-opened and whether there can be estopple regarding the conduct of the respondent-plaintiff. The legal position regarding reopening of the partition is very clear and Hon’ble the Apex Court in the case Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and others (Supra) has clearly ruled out that a partition effected between the members of Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. And in the instant appeal there is nothing like any misrepresentation or undue influence. 24. The respondent-plaintiff himself pleaded before the trial Court that since the appellant-defendant was taking care of his father he was given an added share to with stand the expenses and for taking care of the father. There is no dispute that respondent-plaintiff was living away and was not taking any responsibility of his father. The partition was effected keeping in view all these facts. In Hindu Law there can be oral family partition and as per evidence taken place and there is no dispute about it. Section 115 of the Evidence Act is reproduced hereinbelow; “115. Estoppel.—When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 25. Estoppel.—When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 25. Estoppel is based on the maxim allegans contraria non est audiendus (a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only be reason of some act done, it is in truth a kind of argumentum ad hominem. This principle has been upheld by Hon’ble the Apex Court in B.L. Sreedhar v. K.M. Munireddy, 2003 (2) SCC 355 . Representation to form the basis of an estoppel may be made either by statement or by conduct. Further, in order to found an estoppel a representation must be of an existing fact, not of a mere intention. A representation may be a representation of fact although it involves and includes that which is also a matter of law. It is now popularity known as ‘promissory estoppel’. The Hon’ble Apex Court has given the ratio in Seth Satnarain v. Dominion of India, (1968) 2 SCWR 335. A person may waive a right either expressly or by necessary implication. He may be given a case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. 26. Thus, it was the appellant-defendant who by his own conduct accepted the previous partition effected between the parties and in that partition with mutual consent the extra share was allocated to the appellant-defendant and the reason was also advanced. The defendant maintained silence till death of his father. Now, question arises that whether after the death can respondent-plaintiff raise this issue leaving aside his own admission. The defendant maintained silence till death of his father. Now, question arises that whether after the death can respondent-plaintiff raise this issue leaving aside his own admission. The other fact is also very important that parties are Hindu and they rely on Hindu law of coparcenary, though there is procedure that after the death of coparcener how the share is devolved but at one time he relies on Hindu law of coparcenary but at the same time he left his own mother, who was then alive, to be impleaded as party to have share in his late father’s property. The simple question is why he ignored his mother and insisted on claiming the share of his father by way of succession. The facts on record suggest that it was not a coparcenery division but it was family partition that took place and in view of the case of Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and others (Supra), the partition so effected cannot be reopened. 27. I have also gone through the judgment and order of co-ordinate Bench of this Court in Harey Krishna Agrawal and others v. Jairaj Krishna (D) and others, 2013 (31) LCD 1593, in which, it has been ruled out that “whenever there is a partition, the presumption is that it was a complete one both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion” and even the trial Court and before the First Appellate Court, who could have examined the factual matrix, have not commented any thing regarding the bias partition. 28. The co-ordinate Bench of this Court (Supra) in para 51 of the judgment held that “family arrangements” also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. The co-ordinate Bench has based its finding on the case of Ram Narain Sahu v. Musammat Makhana, ILR (1939) All 680 (PC) and Puttrangamma and others v. M.S. Ranganna and others, AIR 1968 SC 1018 ) 29. In para 58, the co-ordinate Bench of this Court (Supra) held as under : “58. The co-ordinate Bench has based its finding on the case of Ram Narain Sahu v. Musammat Makhana, ILR (1939) All 680 (PC) and Puttrangamma and others v. M.S. Ranganna and others, AIR 1968 SC 1018 ) 29. In para 58, the co-ordinate Bench of this Court (Supra) held as under : “58. In Sita Ram v. Board of Revenue, AIR 1979 All 301 , this Court observed that the expression “settlement” means a non-testamentary disposition of property by an instrument in writing, containing even a declaration of trust, for distribution of property among the settlor’s family or his dependent or those for whom the settlor desires to provide or for religious or charitable purpose. In other words, settlement among members of family in respect of the property jointly owned by them is a kind of compromise/mutual concession and arrangement between the members of family to settle their rights in respect of the member of the family.” 30. Thus legal position is now very clear that the family partition on the basis of above pronouncement of Hon’ble the Apex Court cannot be re-opened. The father was living with the appellant-defendant, therefore, he was given an advantage in the share but nevertheless that will be covered by the mutual settlement and during his life time, the respondent-plaintiff did not utter a single word and did not dispute the rights or claim of the appellant-defendant. Even the suit filed by the respondent-plaintiff before the trial Court was not in accordance with the norms as he did not implead the mother as party. Therefore, there can be no fresh division of the portion of the parties in dwelling house which was partitioned long back and such partition which has already been settled in past and consented to by the respondent-plaintiff cannot be re-opened. 31. In view of above discussions, all the legal questions framed above in para 6 of the judgment are decided in affirmative in favour of the appellant-defendant and against the respondent-plaintiff i.e. family partition cannot be re-opened. It is binding on all the family members in succession because it was in good faith and no fraud and malice has been alleged by the party who has claimed otherwise. Similarly, the division of property was as a whole and shall be binding upon each family member irrespective of its dimension. It is binding on all the family members in succession because it was in good faith and no fraud and malice has been alleged by the party who has claimed otherwise. Similarly, the division of property was as a whole and shall be binding upon each family member irrespective of its dimension. It will not be open to challenge the family settlement arrived at between the parties earlier on the ground that the portion allocated to one party is short of his share. Both these issues have been dealt in detail by the coordinate Bench of this Court in Harey Krishna Agrawal and others v. Jairaj Krishna (D) and others (supra). The appeal is, therefore, liable to be allowed. 32. The appeal is, therefore, allowed with cost and the judgment and order passed by the First Appellate Court dated 6.11.1987 is set-aside and the order and decree dated 13.1.1987 passed by the learned trial Court shall remain effective. —————