JUDGMENT : R. SUBRAMANIAN, J. 1. The second defendant in O.S. No. 352 of 1992 on the file of the Subordinate Judge, Sankari having suffered a decree for partition and separate possession of the plaintiffs' 2/4th share at the hands of the courts below has come up with this second appeal. 2. The suit was laid by the respondents 1 and 2 herein claiming that the suit properties belonged, absolutely, to their father Thirumalai Gounder who died in 1986 leaving behind his wife, his 2 daughters, the plaintiffs, and two sons, the defendants. Pavayee wife of Thirumalai Gounder died on 02.06.1991. Thus according to the plaintiffs being class I heirs of Thirumalai Gounder, they are entitled to 2/4th share in the suit properties. Since the defendants who are sons of Thirumalai Gounder evaded the request of the plaintiffs for partition, the plaintiffs had come forward with the above suit. 3. The first defendant remained ex parte. Second defendant contested the suit claiming that the suit properties are ancestral properties of Thirumalai Gounder and as such the plaintiffs are not entitled to equal share as claimed by them. It was also contended that the sale deed dated 30.05.1948 executed by Sellammal daughter of Ramaswamy Gounder and sister of Thirumalai Gounder is a sham and nominal document without any consideration and only to effect a partition. It is the further claim of the second defendant that the plaintiffs had relinquished their rights after receiving Stridhana as per the caste custom and therefore they are not entitled to seek partition. It is the further contention of the second defendant that the defendants having been made parties to the partition dated 01.12.1955 are entitled to 1/3rd share each and their father Thirumalai Gounder is entitled to only 1/3rd share under the said partition deed. It was also contended that the defendants 1 and 2 have partitioned the properties even during the life time of Thirumalai Gounder under Ex. A7 dated 28.02.1972. On the above contentions the second defendant sought for the dismissal of the suit. 4. At trial the plaintiffs were examined as PWs 1 & 2. Exhibits A1 to A7 were marked. The second defendant was examined as DW 1 and three other witnesses were examined as DWs 2 to 4. Exhibits B1 to B15 were marked on the side of the defendant. 5. 4. At trial the plaintiffs were examined as PWs 1 & 2. Exhibits A1 to A7 were marked. The second defendant was examined as DW 1 and three other witnesses were examined as DWs 2 to 4. Exhibits B1 to B15 were marked on the side of the defendant. 5. The learned Subordinate Judge, Sankari who tried the suit on a consideration of the evidence on record concluded that the suit properties having been purchased by Thirumalai Gounder and his brother Nallanna Gounder under the sale deed dated 30-5-1948, were their separate properties, in the absence of any evidence to show that the purchase was made out of any ancestral nucleus that was available. On the above conclusion it was held that the suit properties are the separate properties of the brothers namely Thirumalai Gounder and Nallanna Gounder. The claim of the second defendant that he having been made a party to the partition deed dated 1.12.1955 he would be entitled to a one third Share in the property was rejected by the trial court. It was also found that the plaintiffs being daughters and class I heirs as per Section 8 of the Hindu succession Act 1956, they would be entitled to equal share along with the defendants. On the above conclusions the learned trial judge decreed the suit as prayed for. 6. Aggrieved, the second defendant preferred an appeal in A.S. No. 17 of 2002 on the file of the Additional District Court, Namakkal. The learned Additional District Judge upon reconsideration of the evidence on record concluded that the partition dated 28.2.1972 will not bind the plaintiffs. The lower appellate court also concurred with the findings of the trial court regarding the nature of the property in the hands of Thirumalai Gounder. On the aforesaid conclusions the lower appellate court, dismissed the appeal confirming the Judgment and decree of the trial court. 7. It is against the above concurrent finding of the courts below the second defendant has come up with this appeal. The following questions of law were framed for hearing in this appeal: 1. Whether the courts below their right in concluding that the suit properties that self acquired properties of Thirumalai Gounder, dehors the recital in Exhibit A2 partition deed dated 1-12-1955 wherein the properties were allotted to the father Thirumalai Gounder and his two sons Nallathambi and Chinnaswami, the appellant herein? 2. Whether the courts below their right in concluding that the suit properties that self acquired properties of Thirumalai Gounder, dehors the recital in Exhibit A2 partition deed dated 1-12-1955 wherein the properties were allotted to the father Thirumalai Gounder and his two sons Nallathambi and Chinnaswami, the appellant herein? 2. Whether the appellant would be permitted to raise the issue relating to allotment made in 1955 partition in the absence of a plea to that effect? 8. I have heard Mr. S. Rajmakesh appearing for the appellant and Mr. N. Manokaran appearing for the respondents. 9. Elaborating on the questions of law framed Mr. S. Rajmakesh learned counsel appearing for the appellant would submit that even though the properties were purchased by the brothers viz. Thirumalai Gounder and Nallanna Gounder on 30.5.1948, they had treated the same as ancestral property. According to him the intention of the brothers to treat the property as ancestral property is evident from the fact that while entering into a partition on 1.12.1955 they had included their sons as parties to the document. Relying upon the language in the partition deed dated 1.12.1955, the learned counsel for the appellant would contend that the fact that the defendants were made parties to the partition, which according to him was intended to bring about a family settlement/arrangement, would confer a right on them dehors the fact that they did not possess any pre-existing right over the properties. In support of this contention. 10. Mr. S. Rajmakesh would invite my attention to the Judgment of the Honourable Supreme Court in Kale & Others v. Deputy Director of Consolidation, reported in AIR 1976 SC 807 . 11. The fact that the first defendant and his sons had entered into a further partition on 28.02.1972 as evidenced by Ex. A7, would show that the effect of the partition on 01.12.1955 was to confer title on the sons of Thirumalai Gounder as well as Nallana Gounder, even though the properties in question were purchased by the brothers in the year 1948 under Ex. A1. Mr. Rajmakesh would, however, concede that insofar as the item 6 of the suit properties, the plaintiffs would be entitled to a 1/4th share, inasmuch as, it was purchased by Thirumalai Gounder and his wife Pavayee under a Sale Deed dated 10.03.1983, marked as Ex. A3. 12. A1. Mr. Rajmakesh would, however, concede that insofar as the item 6 of the suit properties, the plaintiffs would be entitled to a 1/4th share, inasmuch as, it was purchased by Thirumalai Gounder and his wife Pavayee under a Sale Deed dated 10.03.1983, marked as Ex. A3. 12. The sum and substance of the contentions of the learned counsel for the appellant is that though the properties were acquired by Thirumalai Gounder and his brother Nallana Gounder, under Ex. A1 dated 30.05.1948 and it is not shown that the said acquisition was with the aid of a certain joint family nucleus that was an existence on the date of the purchase, the fact that the sons of Thirumalai Gounder as well as Nallana Gounder, were made parties to the Partition Deed dated 01.12.1955 (Ex. A2) would demonstrate the intention of the brothers viz. Thirumalai Gounder and Nallana Gounder, to effect a complete settlement of the family properties and vest their shares in their son, viz. the first and second defendants therein. Therefore, according to Mr. Rajmakesh, the plaintiffs, who are daughters of Thirumalai Gounder, can only claim a share in the 1/3rd share of Thirumalai Gounder and hence they would not be entitled to an equal share along with defendants 1 and 2. 13. Contending contra Mr. N. Manokaran, the learned counsel appearing for the respondents/plaintiffs would submit that the purchase in the year 1948 under Ex. A1 having not been shown to be aided by any joint family nucleus will have to be treated as absolute property of the brothers viz. Thirumalai Gounder and Nallana Gounder. Once it is treated as absolute property of the brothers and both the brothers having died after 1956, the property would devolve on the Class I heirs under Section 8 of the Hindu Succession Act. Therefore, the plaintiffs as daughters would be entitled to an equal share with the sons. In support of his contention that the properties are separate properties of Thirumalai Gounder and Nallana Gounder, Mr. N. Manokaran, would rely upon the following judgments of this Court. 1. M.P.P. Jayagandhi Nadar and Company v. Arunachalam Pillai and others, reported in (1996) 1 MLJ 251 ; 2. S.S. Venkataraman Chettiar v. S. Nandagopal Chettiar and Others, reported in (1970) ILR 2 Mad 560; 3. N. Kuppusamy Naidu v. Saroja, reported in 2015 (1) LW 892 ; 4. N. Manokaran, would rely upon the following judgments of this Court. 1. M.P.P. Jayagandhi Nadar and Company v. Arunachalam Pillai and others, reported in (1996) 1 MLJ 251 ; 2. S.S. Venkataraman Chettiar v. S. Nandagopal Chettiar and Others, reported in (1970) ILR 2 Mad 560; 3. N. Kuppusamy Naidu v. Saroja, reported in 2015 (1) LW 892 ; 4. Vasantha; Mallika; Selvi v. Pushpa; Thangamani; Venkatesan; Bhavanai; Rani; Manimegalai; Kavitha; Rajendran; Natesan, reported in 2017 (1) MWN (Civil) 721 and 5. Kokila v. Swathanthira and others, reported in 2004-3-L.W. 60 : 2004 (3) CTC 401 14. The true all the above judgments of this Court laid down the law to the effect that if properties acquired by the brothers out of their own income without aid of any ancestral nucleus, the mere fact that it is a joint acquisition by two brothers would not by itself clothe the property with the character of ancestral properties or coparcenary properties in which the sons or daughters of the purchasers, as the case may be, would be entitled to a right by birth. The said proposition of law is not in dispute. 15. The main contention of the learned counsel for the appellant is that the fact that the sons of the purchasers were included as parties to the partition dated 01.12.1955 under Ex. B2, would clothe them with the right since the partition was arrived at with a view to make a permanent family arrangement between the brothers. The recitals of the Partition Deed Ex. A2 would assume significance in this context. The brothers, viz. Thirumalai Gounder and Nallana Gounder and their sons are parties to the instrument. The following recitals would be relevant: xxxxxxxxxxxxxxx 16. These recitals in the instrument would definitely convey the intention of the parties to have a complete bona fide settlement of the disputes regarding the sharing of the properties. In Kale & Others v. Deputy Director of Consolidation, reported in AIR 1976 SC 807 , while dealing with the scope and ambit of a family settlement or arrangement, the Hon'ble Supreme Court had observed as follows: "9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus; "The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points on which their rights actually depend." The object of the arrangement is to protect the family from long drawn litigation or perpetual strife which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour. The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections - to the binding effect of family arrangements". 10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." 17. The plaintiffs have not denied the partition dated 01.12.1955. In fact they based their claim on the said instrument. Once it is concluded that despite the fact that the defendants did not have a pre-existing right, the fact that they were made parties to the Partition Deed dated 01.12.1955 and they were allotted the properties along with their father Thirumalai Gounder, would definitely confer a right on them. It would at least amount to an acknowledgment of a right of the sons by the father. It is settled law that a Hindu father has got a right to make a gift of his properties to his sons. The fact that the sons were included as parties to the partition deed would show that the father intended to benefit them. 18. The fact that the defendants had entered into another partition along with the sons under Ex. A7 dated 28.02.1972, even during the life time of Thirumalai Gounder, would, in my considered opinion, buttress the submission of the learned counsel for the appellant that the defendants 1 and 2 had acquired a right to the property of Thirumalai Gounder, under Ex. A2 Partition Deed dated 01.12.1955. 19. The Courts below, however, concluded that the properties having been acquired by the brothers under Ex. A1 Sale Deed in the year 1948 and in the absence of any evidence to show that there was any ancestral nucleus available on the said date will have to necessarily be treated as the absolute properties of the purchasers and the fact that the sons were added as parties to the partition deed was totally over looked by the Courts below. In fact I find that no issue relating to the said claim of the second defendant was framed by the Trial Court. 20. The Lower Appellate Court had framed an issue regarding the character of the property and has concluded that the property will be self-acquisition in the hands of Thirumalai Gounder and therefore, the sons though had been made parties to the document would not acquire a right. The Lower Appellate Court has lost sight of the fact that the two brothers, viz. the defendants and their children have entered into a partition in the year 1972 under Ex. A7, exercising the right they obtained under Ex. A2 Partition Deed dated 01.02.1955. The import of the document, viz. the Partition Deed dated 01.12.1955 as a family arrangement was totally ignored by the Courts below resulting in, the Courts below concluding that the plaintiffs as Class I heirs would be entitled to equal share in the property. 21. In the light of the above conclusions, the question of law raised is answered in favour of the appellant to the effect that the defendants 1 and 2 would get a right to common 1/3rd share in the properties that were allotted to Thirumalai Gounder in the partition dated 01.12.1955. Therefore, Thirumalai Gounder would be entitled to only a 1/3rd share which would devolve upon the plaintiffs and the defendants equally on his death in 1986, therefore each of the plaintiff would be entitled to only a 1/12th share and not 1/4th share as granted by the Courts below. 22. In view of the above answered to the questions of law, the Second Appeal stands allowed, the judgment and decree of the Courts below are set aside, there will be a preliminary decree declaring the 1/12th share each of the plaintiffs in OS No. 352 of 1992 in the suit properties except item 6. In item 6 the plaintiff would be entitled to 1/4th share each. The plaintiffs would also be entitled to mesne profits and they are free to take proceedings under Order XX Rule 12 of the Code of Civil Procedure, for determination of mesne profits. Considering the relationship between the parties there shall be no order as to costs in this Appeal. Consequently, the connected miscellaneous petitions are closed.