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2024 DIGILAW 1603 (KER)

Meethale Veettil Raghavan, (Legal Heir), S/o. Thamu (Died) v. Meethale Veettil Viswan, (Died) Lhrs. Impleaded

2024-12-05

M.A.ABDUL HAKHIM

body2024
JUDGMENT : (M.A. Abdul Hakhim, J.) 1. The above Appeals and Cross Objection arise from two connected suits, which are disposed by the Trial Court by a common Judgment. 2. O.S.No.249/1996 of the Subordinate Judges Court, Kozhikode was a suit for partition and consequential injunction filed by plaintiffs, who are three in numbers, against the defendants, who are seven in numbers. The 3rd defendant in O.S.No.249/1996 had filed O.S.No.140/1996 before the Munsiffs Court, Kozhikode against the plaintiffs in O.S.No.249/1996, as defendants 1 to 3. The said suit was for permanent prohibitory injunction with respect to a part of the plaint schedule property in O.S.No.249/1996. Later, O.S.No.140/1996 was transferred to the Subordinate Judge’s Court, Kozhikode and the same was renumbered as O.S.No.248/1997. 3. For convenience and clarity, the parties are referred to according to their status in O.S.No.249/1996. The Counsels before me are also referred with reference to the parties in O.S.No.249/1996. 4. Both the suits were tried together treating O.S.No.249/1996 as the leading case. On the side of the plaintiffs, no oral evidence was adduced and Exts.A1 to A6 were marked. On the side of the defendants, DWs 1 and 2 were examined and marked Exts.B1 to B17. DW1 is the 6th defendant and the DW2 is the husband of the 3rd defendant. The Commission Reports were marked as Exts.C1, C4, and C6, and Sketches were marked as Ext.C2, C3, and C5. Exts.C5 Plan and C6 Report are submitted by the Advocate Commissioner in O.S.No.140/1996 while the matter was pending before the Munsiff Court. The plaintiffs had filed I.A.No.7932/1998 for remitting back Exts.C1 and C2. After examining the Advocate Commissioner as PW1, the said Application was dismissed as per Order dated 06.11.1999 recording the objection of the plaintiffs for further consideration at the trial of the suit. But at the trial of the suit, no further evidence was let in against Exts.C1 and C2. 5. The Trial Court dismissed O.S.No.249/1996 and decreed O.S.No.248/1997 granting permanent prohibitory injunction. In O.S.No.249/1996 it is found that the entire extent covered by Ext.A1 is already partitioned as per Ext.A6. In O.S.No.248/1997, it is found that the 3rd defendant (in O.S.No.248/1997) has title and possession over the plaint schedule property settled in her favour by the 1st defendant as per Ext.B15. 6. In O.S.No.249/1996 it is found that the entire extent covered by Ext.A1 is already partitioned as per Ext.A6. In O.S.No.248/1997, it is found that the 3rd defendant (in O.S.No.248/1997) has title and possession over the plaint schedule property settled in her favour by the 1st defendant as per Ext.B15. 6. The plaintiffs in O.S.No.249/1996, who are the defendants in O.S.No.248/1997 filed A.S.No.58/2000 challenging the judgment and decree in O.S.No.248/1997 and filed A.S.No.59/2000 challenging the judgment and decree in O.S.No.249/1996. The First Appellate Court dismissed A.S.No.58/2000 confirming the judgment and decree in O.S.No.248/1997 granting permanent prohibitory injunction. The First Appellate Court allowed A.S.No.59/2000 passing Preliminary Decree for partition in O.S.No.249/1996. The injunction sought by the plaintiffs in O.S.No.249/1996 was not granted by the First Appellate Court. 7. R.S.A.No.510/2003 is filed by the defendants 1 to 5 in O.S.No.249/1996 challenging the Preliminary Decree for partition granted by the First Appellate Court in A.S.No.59/2000. 8. The plaintiffs in O.S.No.249/1996 filed Cross Objection No.58/2003 in R.S.A.No.510/2003 against the refusal of the First Appellate Court in A.S.No.59/2000 to grant injunction sought for in O.S.No.249/1996. 9. R.S.A.No.846/2003 is filed by the defendants in O.S.No.248/1997 challenging the judgment of the First Appellate Court confirming the decree for permanent prohibitory injunction in O.S.No.248/1997. 10. This Court admitted R.S.No.510/2003 on 11.07.2003 formulating the following substantial questions of law: 1. Is the court below justified in treating Ext.A6 which affects an out right partition as a document which merely makes arrangement for taking the income?. 2. Is the court below justified in completely disregarding the documentary evidence which will prove that Ext.A6 was accepted and acted on by all the parties?. 11. The Regular Second Appeal No.846/2003 is admitted by this Court on 29.11.2004 on the substantial questions of law formulated in the Memorandum of Appeal. They are: 1. Whether a transferee who is not in lawful possession can maintain a suit for injunction against the real owner? 2. Whether the decree passed by the court below runs counter to the decree in the suit for partition tried and decided along with A.S.No.58/2000 in A.S.No.59/2000? 12. In order to have a clear idea about the facts in both the suits certain facts admitted by the parties are stated first. The admitted facts are: Plaintiffs are son, wife and daughter of one Samikkutty, S/o.Pachu. 12. In order to have a clear idea about the facts in both the suits certain facts admitted by the parties are stated first. The admitted facts are: Plaintiffs are son, wife and daughter of one Samikkutty, S/o.Pachu. The 1st defendant is the son of one Thamu and the defendants 2 to 5 are the children of the 1st defendant. The 6th and 7th defendants are husband and wife who purchased properties from the plaintiff and the 1st defendant. Three persons by names, Kandan, Pachu and Thamu obtained leasehold right as per Ext.A1 of the year 1918. The measurements shown in the said document is 41 x 42 SFK. When the said measurement is taken into consideration it would come to about 1.43 Acres. As per Ext.A6 of the year 1926, 1 Acre of land out of Ext.A1 property was divided and taken possession by Kandan, Pachu and Thamu as per A, B & C Schedules containing Kole measurements. A Schedule having an extent of 35.69 cents allotted to Kandan. B schedule having an extent of 27.89 cents allotted to Pachu. C schedule having an extent of 37.24 cents was allotted to Thamu. On the death of Kandan his share devolved upon his son Kuttan and on the death of Kuttan his share devolved upon his sons Balakrishnan and Govindan. On the death of Pachu, his share devolved upon his son Samikutty. Plaintiffs are the son, wife and daughter of Samikutty. On the death of Thamu, his share was devolved upon the 1st defendant. Balakrishnan and Govindan transferred their rights over A schedule to the 1st defendant as per Ext.B4 of the year 1945. Samikutty transferred 10.17 cents out of B Schedule to 1st defendant as per Ext.A3 of the year 1952. Samikutty and the plaintiffs transferred 5 cents to the 1st defendant as per Ext.A4 of the year 1970. The 1st defendant and Samikutty jointly obtained Ext.A2 Purchase Certificate of the year 1977 for 1 acre 43 cents. The 1st defendant sold 1.92 cents to the 7th defendant as per Ext.B1 of the year 1984. The plaintiffs sold 1 cent to the 6th defendant as per Ext.B2 of the year 1990. The 1st defendant settled 9.62 cents of land in favour of the 3rd defendant as per Ext.B15 settlement deed of the year 1995, which is the Plaint Schedule property in O.S.No.248/1997. 13. The plaintiffs sold 1 cent to the 6th defendant as per Ext.B2 of the year 1990. The 1st defendant settled 9.62 cents of land in favour of the 3rd defendant as per Ext.B15 settlement deed of the year 1995, which is the Plaint Schedule property in O.S.No.248/1997. 13. O.S No. 249/1996 contains A to E schedules of properties. A, B, and C schedule properties are the A, B, and C schedule properties in Ext.A6, D schedule property is 1 acre 43 cents covered by Ext.A1. E schedule contains three items of properties. The 1st item is 10.17 cents of land covered by Ext.A3. Item No.2 is 5 cents of land covered by Ext.A4 Deed. Item No.3 is 1 cent of land covered by Ext.B2. The plaint schedule property in O.S.No.248/1997 is the property having an extent of 9.62 cents covered by Ext.B15 Settlement deed in favour of the 3rd defendant. There ends the admitted facts. 14. As per the plaint allegations, the Ext.A1 property has an extent of 1.43 acres. Excluding the non-yielding 43 cents, the yielding 1 acre was divided in three shares as per Ext.A6 for taking income alone. The parties took possession of A, B and C schedule properties for the purpose of taking income. It is agreed in Ext.A6 that building in B schedule property shall be jointly maintained and enjoyed by the parties. The parties belonging to Thiyya community of Kozhikode and D schedule property is their joint family property. The 3rd plaintiff had constructed a house in B schedule property with her own funds and has been residing thereon and it exclusively belongs to her. Plaint D schedule properties excluding item Nos. 1 and 2 in E schedule are in the joint ownership and possession of the 1st defendant and the plaintiffs, and the plaintiffs are jointly entitled to 1/3 shares and the 1st defendant is entitled to 2/3 shares. The building constructed by the 3rd plaintiff shall not be partitioned and shall be reserved to the 3rd plaintiff. Hence the suit for partition is filed to divide the above properties between the plaintiffs on the one side and the 1st defendant on the other side and for consequential injunction. 15. The defendants 1 to 5 opposed the suit prayers by filing Written Statement contending, inter alia, that the D schedule is not having an extent of 1.43 acres. Hence the suit for partition is filed to divide the above properties between the plaintiffs on the one side and the 1st defendant on the other side and for consequential injunction. 15. The defendants 1 to 5 opposed the suit prayers by filing Written Statement contending, inter alia, that the D schedule is not having an extent of 1.43 acres. It is having only an extent of 1.21 acres. The entire Ext.A1 property was partitioned as per Ext.A6 into A, B and C schedules. The properties were kept in possession by the parties as per the boundaries without any determination of the correct extent by proper measurements. The properties were divided into three only as per the central measurements. A schedule property was purchased by the 1st defendant as per Ext.B4. Portions of B schedule property were also purchased by the 1st defendant from the plaintiff as per Ext.A3 and Ext.A4. Ext.A6 is a Partition Deed. The prohibition against creating separate liabilities etc., were incorporated in Ext.A6 in order to avoid alienation to third parties and also due to the joint liabilities to the landlords and due to the joint rights over the Tharavad house. As per Ext.A6, boundaries were created, and the parties were in exclusive possession of the separate portions, and the 1st defendant constructed a building of his own in the property. The entire properties having irregular shapes were not measured and the extent was not given in any of the deeds. It is known to the plaintiffs that though an extent of 1.43 acres is shown in Ext.A2 Purchase Certificate, the property does not have such extent. The 3rd defendant was only trying to construct a compound wall within her boundary retaining the old fence and the plaintiffs obstructed the 3rd defendant and hence OS No. 140/1996 was filed. The rights if any of the plaintiffs over the portions of the property in possession of the defendants is lost by acquiescence, waiver ouster and limitation. 16. The 6th defendant filed Written Statement contending that she and her husband 7th defendant purchased 1 cent and 1.92 cents as per Exts.B2 and B1 documents and they have been exclusive ownership and possession over the said property. 17. 16. The 6th defendant filed Written Statement contending that she and her husband 7th defendant purchased 1 cent and 1.92 cents as per Exts.B2 and B1 documents and they have been exclusive ownership and possession over the said property. 17. According to the plaintiffs, Ext.A6 contains only 1 acre out of the Ext.A1 property of 1.43 acres and the same was divided and taken possession between the three sharers only for the purpose of taking income. According to the defendants, 1 to 5 Ext.A1 property was not having 1.43 acres, and the entire Ext.A1 property is partitioned as per Ext.A6 and the respective sharers to possession of the properties scheduled therein. Ext.A6 is named as ‘Nischaya Rekha’ which means Deed of Arrangement. 18. The Trial Court found Ext.A6 as a Partition Deed partitioning the entire Ext.A1 property holding that since the properties are described in middle Kole measurements, the extent is not accurate on account of the irregular shapes of the properties; that the total extent is 1 acre 21 cents of land as per the Commission Report and that the plaintiffs could not point out any property other than the property identified by the Advocate Commissioner remaining outside the identified property. 19. 19. The First Appellate Court passed Preliminary Decree in O.S.No.249/1996 holding that Ext.A6 is an arrangement to take possession of the scheduled properties only for the purpose of dividing income and that the entire Ext.A1 property having an extent of 1.43 acres is not divided as per Ext.A6; that since Ext.A6 is not a Partition deed the properties covered by Ext.A1 are to be partitioned between the plaintiffs and the 1st defendant; that the properties shown in E schedule cannot be left out simply because they were sold to the 1st defendant; that the partition has to be effected without disturbing the possession of A,B and C schedule properties since possession have been continuing right from 1926 as per Ext.A6; that the plaintiff is entitled to get 1/3rd share in the 43 cents of land which was left out at the time of Ext.A6; that the plaintiff is entitled to get 1/3rd share out of the 1 acre of property covered by Ext.A6; that since the parties have been in separate possession of A,B and C schedule properties the plaintiffs is to be allotted B schedule property towards their 1/3rd share in the said 1 acre; that in case, the plaintiffs are entitled to more or less extent than B schedule property in the said 1 acre the same will have to be adjusted by payment of owelty; and that the Plaint A, B and C schedule properties and the 43 cents of land which was left out at the time of Ext.A6 are to be properly identified before effecting division at the time of passing final decree. With respect to O.S.No. 248/1997, it is held that since plaint schedule property therein does not come within B schedule property belonging to the plaintiffs, the plaintiffs are not permitted to interfere with the possession and enjoyment of the plaint schedule property by the 3rd defendant. Thus, the First Appellate Court confirmed the judgment and decree of Permanent Prohibitory Injunction in O.S.No. 248/1997 and passed Preliminary Decree for Partition in O.S.No. 249/1996. 20. I heard the learned counsel Smt. Zohra, who appeared for the plaintiffs and the learned counsel Sri.Srinath Gireesh, who appeared for the defendants 1 to 5. 21. Since both sides approached this Court filing appeals challenging the judgments and decrees of the First Appellate Court arising from the above two suits, I heard the Counsel for the plaintiffs first. 20. I heard the learned counsel Smt. Zohra, who appeared for the plaintiffs and the learned counsel Sri.Srinath Gireesh, who appeared for the defendants 1 to 5. 21. Since both sides approached this Court filing appeals challenging the judgments and decrees of the First Appellate Court arising from the above two suits, I heard the Counsel for the plaintiffs first. 22. Learned Counsel for the plaintiffs took me to the recitals in various documents produced by the parties to substantiate the contention that Ext.A6 is only a family arrangement. According to the learned Counsel, admittedly, only 1 acre is partitioned as per Ext.A6 whereas Ext.A1 covers 1 acre 43 cents. The Advocate Commissioner has found 1 acre 21 cents on measurement, and it would indicate that the extent more than what is covered under A6 is available. Ext.A2 Purchase Certificate would reveal that 1 acre 43 cents is available for partition. The First Appellate Court is fully justified in holding that Ext.A6 is only a family arrangement, and the properties were not partitioned as per Ext.A6 document. The legal heirs of Kandan, who were allotted A scheduled property as per Ext.A6, were not included in the suit as, admittedly, all their rights over Plaint D's scheduled property were transferred to the 1st defendant as per Ext.A3. The non-examination of the plaintiffs is not material since the issue is to be adjudicated on the basis of the interpretation of the admitted documents. 23. On the other hand, the learned Counsel for the defendants 1 to 5 contended that it is revealed from the recital of the documents, facts and circumstances of the case and the conduct of the parties, Ext.A6 is a partition deed. From the conduct of the parties it is revealed that all the parties believed that it is a Partition Deed and proceeded on the basis of the same. If there was no partition as per Ext.A6, the legal heirs of Kandan are necessary parties to the suit. Samikutty the predecessor of the plaintiffs and the plaintiffs executed Ext. A3 document of the year 1952 transferring Schedule E1 property of 10.17 cents to the 1st defendant and plaintiffs executed Ext.A4 document of the year 1970 transferring Schedule E2 property of 5 cents to the 1st defendant on the basis that Ext.A6 is a Partition Deed. Samikutty the predecessor of the plaintiffs and the plaintiffs executed Ext. A3 document of the year 1952 transferring Schedule E1 property of 10.17 cents to the 1st defendant and plaintiffs executed Ext.A4 document of the year 1970 transferring Schedule E2 property of 5 cents to the 1st defendant on the basis that Ext.A6 is a Partition Deed. The plaintiffs sold 1 cent to the 6th defendant who is a stranger to the family as per Ext.B2. If there was no partition as per Ext.A6, the plaintiff could not sell the said property to the 6th defendant. The Plaintiffs believed that Ext.A6 is a Partition Deed and allowed others also to believe so and hence the plaintiffs are estopped from contending that Ext.A6 is not a Partition Deed. The non examination of the plaintiffs is fatal to the claim made by the plaintiffs. The learned counsel cited the decision of this court Kamalamma v. Shibu [ 2024(3) KHC 547 ] in which it is held that when there is conflict between description of area and boundaries, in normal case boundaries shall prevail. The learned Counsel relied on the said decision to substantiate the point that in the case of non examination of plaintiffs, adverse inference is liable to be drawn against the plaintiffs. The learned Counsel cited the decision of this Court in Chandrakumar v. Narayanan Bahuleyan and another [ 2011 (2) KHC 884 ] in which it is held that when the identity of the property is in dispute, then usually boundaries predominate and rest are regarded as erroneous or inaccurate, but it is not inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error. The learned Counsel cited the decision of this Court in Divakaran N v. David Livingston [ 2024 (5) KLT 344 ] in which it is held that if the existence of truth of facts stated in a document in disputed it is to be proved by the oral evidence of the person who has perceived those facts by senses and who can vouch for the truth of those facts. The learned counsel relied on the decision of this court in Narayani Amma Sumati Amma v. Bhaskara Pillai Rajagopalan Nair and others [AIR 1969 Kerala 214] to substantiate the importance of family arrangement in which it is held that a family arrangement is binding to the parties in the arrangement when all major members have accepted the settlement it cannot be set aside unless it is detrimental to the interest of minors. Learned Counsel cited the decision of the Hon’ble Supreme Court in Bharat Sher Singh Kalsia v. State of Bihar and another [2024 Live Law SC 80] to substantiate the point that if there is a repugnancy between the earlier and later clauses of a deed whereby a later clause destroys altogether the obligation created by the earlier clause, then the later clause is to be rejected as repugnant to the earlier clause and the earlier clause prevails. 24. I have considered the rival contentions. Two points arise for determination out of the disputes between the plaintiffs and defendants 1 to 5: 1. Whether Ext.A6 covers the entire Ext.A1 property? 2. Whether Ext.A6 is a Partition deed or a mere arrangement dividing the property for the purpose of taking income? POINT NO.1 25. Admittedly, the properties are described middle Kole measurements in Exts.A1 and Ext.A6 documents. The extent of the properties described in these documents could not be accurately found without understanding the shapes of the properties. Hence actual measurements could not be found on the basis of the middle Kole measurements stated in Exts.A1 and A6 documents. It could not be assured that Ext.A1 property covers 1 acre 43 cents. It could not be assured that Ext.A6 property covers only 1 acre. There is no indication in Ext.A6 that some properties are kept apart and the balance property alone is partitioned. Any of the properties scheduled therein is not bounded by the alleged balance property. According to the plaintiffs, 43 cents, which was non- yielding, was not partitioned. No such statement is seen in Ext.A6. Plaintiffs did not mount to the witness box to prove that 43 cents, which was non- yielding, that it was not partitioned as per Ext.A6, and that the said 43 cents has been lying without partition. In the subsequent documents also there is no reference about the extent of the property covered by Ext.A1 and A6 documents. Plaintiffs did not mount to the witness box to prove that 43 cents, which was non- yielding, that it was not partitioned as per Ext.A6, and that the said 43 cents has been lying without partition. In the subsequent documents also there is no reference about the extent of the property covered by Ext.A1 and A6 documents. It is true that Samikutty and the 1st defendant obtained Ext.A2 Purchase Certificate in the year 1977 and it shows an extent of 1.43 acres. But the Advocate Commissioners could not find the said extent in the field. He found only 1 acre 21.18 cents in Ext.C1 plan. It would indicate that the area shown in the Purchase Certificate is not correct. If more extent than the property identified by the Advocate Commissioner is available in the field, the plaintiff could have pointed out the said extent to the Advocate Commissioner. Plaintiffs have no case that 1 acre out of the property identified by the Advocate Commissioner was partitioned as per Ext.A6 and the balance 21.18 cents is liable to be partitioned. Even assuming that the plaintiffs had such a contention the location of the said 21.18 cents which was not included in Ext.A6 could not be pointed out by the plaintiff. The Advocate Commissioner has not found any barren land inside the identified property. In view of these facts, I am of the view the entire property covered by Ext.A1 was included in Ext.A6 and took possession by the respective shares. Ext.B3 Settlement Register would show that there is only 1.21 acres. Since the Advocate Commissioner has identified 1 acre 21.18 cents in the field and the plaintiffs have no case that some properties are left out by the Advocate Commissioner, the direction of the First Appellate Court to identify 43 cents of land which is included in Plaint D schedule property apart from A, B and C schedule property is unsustainable. POINT NO.2 26. The next point is whether Ext.A6 document is a Partition deed or it is only a mere family arrangement for taking income. Ext.A6 is of the year 1926. It is seen from the recital in Ext.A 6 that the property was divided in three shares considering the income from the properties. POINT NO.2 26. The next point is whether Ext.A6 document is a Partition deed or it is only a mere family arrangement for taking income. Ext.A6 is of the year 1926. It is seen from the recital in Ext.A 6 that the property was divided in three shares considering the income from the properties. The payment to the landlord is to be made by all the parties joining together and the lease is to be renewed jointly on expiry of the lease. The payment to the landlord by each of the sharers is also almost equal. When the recitals in Ext.A6 document are taken as a whole it would indicate that the reference to the income is made only for the purpose of ensuring that all three sharers are getting equal shares. Admittedly, the sharers in Ext.A1 were having only leasehold right and the lease is to be renewed from the landlord. As far as the landlord is concerned, it is a single tenancy. Hence it was provided in Ext.A6 that the renewal of lease shall be done jointly. It would not in any way indicate that there was no partition as per Ext.A6. Even though it is stated that it is only a ‘Nischaya rekha’ which means a Deed of arrangement, I am of the view that it is essentially a partition among the parties included therein. Admittedly, A schedule property therein belonging to Kandan was sold to the 1st defendant as per Ext.B4 document of the year 1945 by the legal heirs of Kandan. The recital in Ext.B4 is that the property transferred is the property which is kept as their own by the transferors. The plaintiffs have no dispute about this fact. Accepting that the rights of Kandan in the property transferred to the 1st defendant, the plaintiffs did not implead the legal heirs of Kandan in the suit and admitted that the 1st defendant is having 2/3rd share in Plaint D schedule property. The plaintiffs including their predecessor executed 10.17 cents and 5 cents in favour of the 1st defendant as per Ext.A3 and A4 documents. If there was no partition as per Ext.A6, the plaintiffs and their predecessor would not have been able to sell such identified properties from B schedule to the 1st defendant. The plaintiffs including their predecessor executed 10.17 cents and 5 cents in favour of the 1st defendant as per Ext.A3 and A4 documents. If there was no partition as per Ext.A6, the plaintiffs and their predecessor would not have been able to sell such identified properties from B schedule to the 1st defendant. The recitals in Exts.A3 and A4 would indicate that plaintiffs have accepted Ext.A6 as a partition deed and hence executed Exts.A3 and A4 stating that it is their exclusive property. The plaintiffs have executed Ext.B2 document also in favour of the 6th defendant selling 1 cent out of plaint B schedule property stating that it is their exclusive property. It reveals that plaintiffs have accepted Ext.A6 as a partition deed and allowed by their conduct caused others also to believe that Ext.A6 is a Partition Deed. In such case, the plaintiffs are estopped from contending that Ext.A6 is not a Partition deed. Ext.C1 Plan would indicate that the plaintiffs have been occupying 21 cents of land within well demarcated boundary. It is situated on the western side of the entire property. The way to the property in the possession of the plaintiffs is lying north-south touching north eastern side of their property. Admittedly, the plaintiffs have purchased 1 cent of land on the western side of the said way for widening the said way as per Ext.B5. It would indicate that the plaintiffs have identified and accepted their share as shown in Ext.C1 plan. 27. The case of the plaintiffs is that Ext.A6 is only a family arrangement. Even assuming that Ext.A6 is only a family arrangement, the division therein shall be respected and shall not disturbed since the parties therein including the plaintiffs have been enjoying the properties and dealing with the properties as their own for nearly 70 years prior to the filing of the suit. Courts have always lean to uphold long standing family arrangement invoking special equity. It is the duty of the Court to uphold long standing family arrangement in the absence of any vitiating elements for the same. It is useful to refer to the classic decision of the Hon’ble Supreme Court on the importance of family arrangement in Kale v. Deputy Director of Consolidation [ (1976) 3 SCC 119 ]. It is quite apposite to extract Paragraphs 9 to11in the said decision: “9. It is useful to refer to the classic decision of the Hon’ble Supreme Court on the importance of family arrangement in Kale v. Deputy Director of Consolidation [ (1976) 3 SCC 119 ]. It is quite apposite to extract Paragraphs 9 to11in the said decision: “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. 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 good will 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 honestly 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 what 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 strifes 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. 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 administration 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 successionis 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 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 arrangements 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 prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable 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 which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not 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 owners, 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. 11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts' which we shall discuss presently.” 28. It is seen from the recitals of Ext.A6 that it was executed to resolve the disputes in the family. There is no evidence on the part of the plaintiffs that Ext.A6 division is unfair and inequitable. There is no pleading that Ext.A6 family arrangement is bad for vitiating elements. The fact is that the family survived without any dispute for 70 years after Ext.A6 family arrangement. Such long standing family arrangement shall not be ignored on a mere asking. Even if Ext.A6 is treated as a family arrangement, the division of the properties in Ext.A6 liable to be upheld in the light of the principles laid down by the Hon’ble Supreme Court in Kale (supra). 29. Going by the contentions raised by the plaintiffs, their contentions could not be adjudicated on the basis of the documents produced by the parties. Oral evidence from the plaintiffs is absolutely essential to find out the circumstances under which Exts.A6, A3, A4 and B2, and B4 documents were executed. It is for the plaintiffs to explain how the deficit occurred when Ext.A1 covers 1.43 acres, according to them. The plaintiffs have to explain the reasons for non impleadment of the legal heirs of Kandan in the suit. True, the oral evidence of the plaintiffs is not mandatory in all cases. It is for the plaintiffs to explain how the deficit occurred when Ext.A1 covers 1.43 acres, according to them. The plaintiffs have to explain the reasons for non impleadment of the legal heirs of Kandan in the suit. True, the oral evidence of the plaintiffs is not mandatory in all cases. Whether the oral evidence of any of the parties in a suit is essential or not and whether failure to adduce oral evidence is fatal to his case or not are questions which are to be decided in the facts and circumstances of each case. Here is a case where the plaintiffs have brought a suit in the year 1996 contending that Ext.A6 Deed of the year 1926 is only a family arrangement and not partition, when admittedly the parties therein, including the plaintiffs, have been enjoying the properties and dealing with the same as their own. Necessarily, the plaintiffs have an obligation to explain the in ordinate delay in bringing the suit. I am of the view that failure to adduce oral evidence from the part of the plaintiffs is fatal in these suits. 30. In view of the aforesaid discussions, I am of the view that R.S.A No.510/2003 is liable to be allowed and R.S.A.No.846/2003 and Cross Objection 58/2003 in RSA No. 510/2003 are liable to be dismissed. Substantial questions of law Nos. 1 and 2 formulated in R.S.A No. 510/2003 are answered in the negative and in favour of the appellant. The Cross objection is not seen admitted formulating any substantial question of law. No substantial question of law is stated in the Cross Objection also. The substantial question of law No.1 formulated in R.S.A.No. 846/2003 does not arise for consideration as the plaintiffs are not the co-owners of the plaint schedule property in O.S No. 248/1997 which is filed by the 3rd defendant in OS No. 249/1996. The question of law No.2 formulated in R.S.A.No.846/2003 is answered in the negative and in favour of the respondent. 31. In the result, R.S.A.No. 846/2003 and Cross Objection No. 58/2003 are dismissed without costs. R.S.A.No.510/2003 is allowed without costs setting aside the judgment and decree of the First Appellate Court in A.S.No. 59/2000 and restoring the judgment and decree of the Trial Court in O.S No. 249/1996.