JUDGMENT : Dated this the 4 th day of March, 2025 Plaintiffs, who are aggrieved by the decree and judgment dated 31.07.2013 in O.S.No.874/2011 on the files of the III Additional Sub Court, Ernakulam, have preferred this appeal under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for short). Respondents herein are the defendants in the Suit. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the contesting respondent. Perused the trial court records and the decisions placed. 3. I shall refer the parties in this appeal with reference to their status before the trial court, hereinafter for easy reference. 4. Plaint averments in brief:- The plaintiffs and the defendants are the children of late Kuttappan and Thankamma and they died in the year 1975 and 1999 respectively. Kuttappan obtained 5 ¼ cents of property as kudikidappu as per Sale Deed No.3790/1976 of Ernakulam SRO. Thankamma obtained 5 cents of property in Karikamuri on the strength of Will executed by her brother Mylan in the year 1972. The 1 st defendant, who is the eldest member of the family and was holding a respectable job in Port Trust, was entrusted to manage the properties since he had command over the other members of the family. The 1 st defendant persuaded Thankamma and the 2 nd defendant to sell the properties for purchasing 20 cents of property in Elamkulam village. Accordingly, the property owned by Thankamma was sold to one James. By using the sale proceeds of the said 5 cents and advance amount of the kudikidappu property, 20 cents of property, adjacent to the kudikidappu 5 cents property, was purchased. At the time of purchase of 20 cents of property, it was agreed to purchase the same in the name of Thankamma, but the 1 st defendant executed sale deed in his name even though a draft in the name of Thankamma was initially prepared, since the 1 st defendant had command and control over the plaintiffs and other defendants. Some property obtained by Thankamma was also agreed to be sold in the name of Viswanathan and Rs.5,000/- was received as advance. Later the said property was sold to one T.M.Joseph. The said money was utilised for constructing 2 houses in the schedule property. Some property obtained by Thankamma was also agreed to be sold in the name of Viswanathan and Rs.5,000/- was received as advance. Later the said property was sold to one T.M.Joseph. The said money was utilised for constructing 2 houses in the schedule property. Thereafter due to intervention of mediators, the 1 st defendant agreed to transfer 5 cents out of the property together with the building therein to the 2 nd defendant, who has been residing there with his family. It was also agreed to sell the remaining property and give value of 2 cents each to the plaintiffs. The original agreement was retained by the 1 st defendant. The 1 st defendant wilfully refused to enforce the agreement. Again there were rounds of mediation. On 23.08.2011, an agreement was executed by the 1 st defendant in favour of plaintiffs and 2 nd defendant agreeing to transfer title and possession of 10 cents of land forming south and western portion of the plaint schedule property in the names of the plaintiffs and southern 5 cents including the house therein to the 2 nd defendant free of consideration. On 23.09.2011, 2 sale deeds also were drafted in this regard. Ignoring the agreement, the 1 st defendant attempted to sell the property and accordingly the present suit has been filed seeking decree of mandatory injunction directing the defendant to act in accordance with the agreement dated 23.08.2011 and also restraining the respondents from alienating the plaint schedule property. 5. First defendant entered appearance and filed written statement. Agreement dated 23.08.2011, alleged to be executed by the 1 st defendant in favour of the plaintiffs and the 2 nd defendant, was denied and it is contented that the same is concocted, fabricated and forged one. The mother of the plaintiffs and the defendants died as on 19.03.1997 and not in the year 1995. The statement that Kuttappan obtained title over 5 ¼ cents of land by sale deed No.3790/1976 as kudikidappu is incorrect and denied. Sale deed was obtained by the 1 st defendant in respect of the plaint schedule property in his sole name and the 1 st defendant has been in possession and enjoyment of the same as he used his own money to purchase the same. Sale deed was obtained by the 1 st defendant in respect of the plaint schedule property in his sole name and the 1 st defendant has been in possession and enjoyment of the same as he used his own money to purchase the same. It is incorrect to state that the 1 st defendant being the eldest member of the family was being looked upon by other members of the family as karanavar for guidance. He was not in a fiduciary position to have command over the members of the family. The averment that the 1 st defendant persuaded late Thankamma, plaintiffs and 2 nd defendant to sell out the properties and to purchase 20 cents in Elamkulam village also was denied. The 1 st defendant was employed in port trust and was getting substantial amount as salary. He purchased the said 20 cents by utilizing his service benefits. 6. Adverting to the rival contentions, the trial court raised necessary issues and ventured the matter. During trial PW1 to PW4 were examined and Exts.A1 to A8 were marked on the side of the plaintiffs; DW1 was examined and Exts.B1 to B3 were marked on the side of the defendants; CW1 to CW4 were examined as court witnesses and Exts.C1 and C1(a) were marked as court exhibits. The trial court considered the rival contentions and finally dismissed the Suit. 7. It is argued by the learned counsel for the plaintiffs that the trial court went wrong in ignoring Ext.A5 agreement as a family settlement and therefore, the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants as agreed upon as per Ext.A5. According to the learned counsel for the plaintiffs, the trial court ignored the long course of disputes between the parties from 1991 onwards and various agreements and compromise talks transpired between the defendants and the plaintiffs, which finally culminated in signing Ext.A5 agreement. It is pointed out that the trial court failed to take note of the fact that the 1 st defendant admitted execution of agreement dated 10.11.1992 and 19.05.2009 marked as Exts.A3 and A4. But the 1 st defendant had no explanation as to why Exts.A3 and A4 were executed regarding the plaint schedule property if there is no joint family property. 8. But the 1 st defendant had no explanation as to why Exts.A3 and A4 were executed regarding the plaint schedule property if there is no joint family property. 8. It is argued by the learned counsel for the plaintiffs further that in this matter, the evidence of PW1 to PW3, supported by the admission of DW1 as regards execution of Exts.A3 and A4, categorically established the execution of Ext.A5 which would recite that 20 cents of property covered by Ext.A1 was purchased by using the fund raised from the sale of property covered by Ext.A8 as well as property obtained by the 1 st defendant on the strength of Ext.B1 judgment. Therefore, the trial court went wrong in refusing the plea. Therefore, the decree and judgment would require interference. 9. The learned counsel for the plaintiffs also submitted that the suit has been filed for partition on the strength of Ext.A5 agreement and the same is a family settlement. According to the learned counsel for the plaintiffs, Ext.A5 is to be read as a family settlement and he has placed decision of this Court in Nalini v. Kowmari, reported in 1990 KHC 586 , wherein this Court while dealing with an agreement, whereby one among the sharers agreed to purchase a property was found to be a family settlement. Apart from that, the learned counsel also placed decision of the Apex Court in Maturi Pullaiah and Another V. Maturi Narasimham and Others, reported in 1966 KHC 714, to substantiate that a family settlement would not require registration and Ext.A5 is having the characteristics of a family settlement, so as to ask for partition of the property covered by the same. 10. Dispelling the contention raised by the learned counsel for the plaintiffs, the 1 st defendant placed decision of this Court in Sandhyavu V. Peter, reported in 2024 KHC 372 , wherein this Court considered the two questions of law viz., (1) what are the essentials to succeed a claim for family arrangement or family settlement; and (2) whether a family settlement or family arrangement made orally would require registration. 11. In the said case, this Court enlisted the essentials to succeed a claim for family arrangement or family settlement, following three Bench decision of the Apex Court in Kale V. Deputy Director of Consolidation reported in 1976 KHC 809 12. 11. In the said case, this Court enlisted the essentials to succeed a claim for family arrangement or family settlement, following three Bench decision of the Apex Court in Kale V. Deputy Director of Consolidation reported in 1976 KHC 809 12. The questions pose for consideration, on the basis of rival submissions made by the learned counsel for the plaintiffs and the 1 st defendant, are; 1. Whether the plaintiffs succeed in establishing that the property covered by Ext.A5, the so called family settlement in the form of an agreement, is the property originally purchased by the 1st defendant by selling the properties held by the parents (Kuttappan and Thankamma)? 2. Whether the execution of Ext.A5 in that contingency is proved rather believable? 3. What are the essentials to constitute a family settlement? 4. Whether the trial court went wrong in non-suiting the plaintiffs? 5. Whether the verdict of the trial court would require interference? 6. Reliefs and costs. 13. Point No . 3 : Going by the decisions placed by the learned counsel for the plaintiffs as well as the learned counsel for the 1 st defendant, the legal position is not in dispute that a family settlement or a family arrangement should qualify the essentials set out in Sandhyavu’s case (supra) as under: “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. 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 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 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.” 14. Point Nos.1, 2 and 4 to 6: In the instant case, the case of the plaintiffs is that originally Kuttappan and Thankamma obtained 5 ¼ cents of property as kudikidappu as per Sale Deed No.3790/1976, marked as Ext.A8, and Thankamma obtained 5 cents of property in Karikamuri on the strength of a Will executed by her brother Mylan in the year 1972. The further case of the plaintiffs is that the 1 st defendant, who is the eldest member of the family and was holding a respectable job in the Port Trust, was entrusted to manage the properties since he had command over the other members of the family. The further case of the plaintiffs is that the 1 st defendant, who is the eldest member of the family and was holding a respectable job in the Port Trust, was entrusted to manage the properties since he had command over the other members of the family. Holding the said position, he persuaded Thankamma and the 2 nd defendant to sell the above properties for purchasing 20 cents of property in Elamkulam village and accordingly, the above properties were sold and by using the fund therefrom, 20 cents of property covered by Ext.A1 sale deed No.10872/1978 was purchased and thereafter, by executing Ext.A3 agreement by the 1 st defendant in favour of Raghu, (one of his brothers) who is the 2 nd defendant in the Suit, the 1 st defendant agreed to give him 5 cents on 10.11.1992, apart from executing Ext.A4 agreement on 19.05.2009 in the same way to give value of 5 cents to the 2 nd defendant. Ext.A5 agreement was executed thereafter and thereby Thankappan/1 st defendant agreed to give 5 cents of property to the above said Raghu/2 nd defendant and 10 cents of property together in favour of Gouri Balan, Vallikutty, Ramba and Omana. According to the 1 st defendant, he did not execute Ext.A5 agreement and he emphatically denied signatures on all the pages in Ext.A5 and the specific case of the 1 st defendant is that Ext.A5 is a forged document. It is pointed by the learned counsel for the 1 st defendant that apart from denying the execution of Ext.A5, the 1 st defendant raised specific contention in the written statement that he had purchased Ext.A1 property by using his own funds and he did not use any funds of the family to purchase Ext.A1 property. It is also pointed out by the learned counsel for the 1 st defendant that on perusal of Ext.A8, it could be gathered that one William who was the janmi of the property sold the said property in the name of the 1 st defendant for the consideration shown therein and therefore, Ext.A8 property is also the self acquired property of the 1 st defendant. In fact, this contention could not be accepted for the reason that during cross examination of DW1, the 1 st defendant himself admitted that the property covered by Ext.A8 is kudikidappu property held by the father. In fact, this contention could not be accepted for the reason that during cross examination of DW1, the 1 st defendant himself admitted that the property covered by Ext.A8 is kudikidappu property held by the father. Coming to the property covered by Ext.B1 judgment, in fact, the same is one obtained by the 1 st defendant as per Ext.B1 judgment on the strength of a Will deed executed by Mylan in favour of the 1 st defendant as found in Ext.B1 judgment. Even though the plaintiffs have a case that Mylan is the brother of Thankamma, evidence as that of PW1 and DW1 would not justify the said relation. Going by Ext.B1 judgment, it is recited therein that, the Will deed executed by Mylan in favour of the 1 st defendant and thereby conferred right to the 1 st defendant over 5 cents of property. Thus it could be found that even though the plaintiffs case is to the effect that Ext.B1 property also is family property, since Ext.B1 property is a property obtained by the 1 st defendant on the strength of a Will executed by Mylan and the same is not a property where Thankamma or the family had any rights. 15. Although execution of Ext.A3 and Ext.A4 are admitted by the 1 st defendant, in Ext.A3, it has been recited that the properties originally belonged to the 1 st defendant despite that he executed Ext.A3 agreement to give 5 cents of property to Raghu, who is the 2 nd defendant in the suit, who was declared ex parte by the trial court. But in Ext.A3, there is no recital that Ext.A1 property was purchased by using the fund raised from Ext.A8 or Ext.B1 property or the fund of the family. Similar is the position insofar as Ext.A4 is concerned. 16. Insofar as execution of Ext.A5 in between the 1 st defendant and the other parties as alleged, in view of the specific denial on the part of the 1 st defendant, PW1 to PW3 were examined. PW1 filed chief affidavit in support of the case of the plaintiffs and according to him, Ext.A5 was executed at the residence of the 1 st defendant where the wife of the 1 st defendant also signed as a witness. PW1 filed chief affidavit in support of the case of the plaintiffs and according to him, Ext.A5 was executed at the residence of the 1 st defendant where the wife of the 1 st defendant also signed as a witness. PW1 deposed that stamp paper for executing Ext.A5 agreement was purchased by PW1/Balan and Thankappan and it was prepared at the office of Muraleedharan and signed at the residence of the 1 st defendant. PW2, who signed in Ext.A5 as a witness, given evidence during chief examination that he is aware of the plaintiffs and defendants and they are children of his uncle and he put signature in Ext.A5 for the purpose of dividing the family property and there were discussions before execution of Ext.A5. PW3 is another witness who also supported execution of Ext.A5. During cross examination, the evidence of PW3 is that Thankamma executed Will deed in favour of Thankappan, but his evidence in this regard is as against Ext.B1 judgment and the Will deed, in fact, executed by Mylan in favour of the 1 st defendant. 17. PW4 was examined in this case to prove the execution of Ext.A4 and the same is a document admitted by the 1 st defendant. In the plaint, as already pointed out, the contention of the plaintiffs is that by using the fund generated from Exts.A8 and B1 properties, the 1 st defendant purchased Ext.A1 property in his name, therefore, Ext.A1 property (plaint schedule) is family property. The operative portion of Ext.A5 has given much reliance in this regard. In fact, the contention would show that in the year 1972, Ext.A1 property was purchased in the name of the 1 st defendant by utilising the money available from the sale of Karikamuri property, i.e, Ext.B1 property, and advance amount received for the property covered by Ext.A8. The trial court negatived this contention mainly on the finding that Ext.A8 property was sold in the year 1989 and Ext.B1 property also obtained by the 1 st defendant before execution of Ext.A1 and therefore, purchase of Ext.A1 property by the 1 st defendant by using the funds raised from the sale of the said properties is not believable. The trial court negatived this contention mainly on the finding that Ext.A8 property was sold in the year 1989 and Ext.B1 property also obtained by the 1 st defendant before execution of Ext.A1 and therefore, purchase of Ext.A1 property by the 1 st defendant by using the funds raised from the sale of the said properties is not believable. The trial court also found that apart from proving Ext.A5, the plaintiffs are duty bound to establish that the plaint schedule property was purchased by the 1 st defendant by using the family property and then only they could rely on Ext.A5 agreement. As regards to Ext.A5 agreement, the finding of the trial court as extracted in paragraph No.14 is as under: “14. Plaintiff mainly relied on proving Ext.A5 agreement allegedly executed by the first defendant to prove that it was a family property rather than adducing any evidence to see that the Elamkulam Property and the Karikkamuri properties were family properties of plaintiffs and defendants. With regard to the execution of Ext.A5 agreement allegedly executed by first defendant the plaintiff got examined the scribe of said document as CW4 and he would testify that documents executed at his office. The plaintiff further got examined PW2 to 4. PW2 would testify that plaintiff and defendants are the children of his uncle and he had signed on Ext.A5 agreement as witnesses. The said agreement was executed for partitioning their family property and in that document first defendant and other witnesses were signed. PW3 and 4 also would testify that they signed on Ext.A5 document as witnesses. As per the evidence of PW2 the document was prepared at the document writer’s office and he did not testify that which was signed at the office. PW3 also did not testify the place of execution of Ext.A5 document. CW4 the scribe would testify that document was executed at his office. In that aspect, it is worth while to note the testimony of PW2 that the document was got prepared from the document writers office on 23.08.2011. So the evidence of PW2 would show that it was not signed by the parties at the office of the document writer. CW4 the scribe would testify that document was executed at his office. In that aspect, it is worth while to note the testimony of PW2 that the document was got prepared from the document writers office on 23.08.2011. So the evidence of PW2 would show that it was not signed by the parties at the office of the document writer. So there is no consistent evidence as to the place of execution of Ext.A4 and the evidence on that aspect is also is not reliable.” In paragraph No.15 also, the trial court addressed the genuineness of Ext.A5 while holding that as per the plaint averments, Ext.A5 agreement was prepared at the office of the document writer and in the presence of plaintiffs and defendants but the place of execution is at variance. Thus it was found by the trial court that there was no probability to execute Ext.A5. 18. In this case, as per Exts.A3 and A4 documents, admittedly, executed by the 1st defendant in favour of the 2nd defendant, the 1st defendant agreed as per Ext.A4 dated 19.05.2009 to give value of 5 cents of property, out of 20 cents of property covered by Ext.A2, to 2 nd defendant/Raghu and as per Ext.A3 dated 10.11.1992, the 1 st defendant agreed to give 5 cents of property along with the building therein to the 2 nd defendant. Either in Ext.A3 or in Ext.A4, there was no mention that the property of 20 cents covered by Ext.A1 was purchased by using the fund of the family. Since Ext.A1 sale deed was executed on 25.03.1978, use of the funds by selling Ext.A8 and Ext.B1 properties for the same is an outright impossibility. In such contingency, in order to succeed the contention raised by the plaintiffs that Ext.A1 property was purchased by using the fund of the family, the plaintiffs should have to adduce independent evidence. But no such evidence forthcoming. Thus nowhere from records except Ext.A5, it could be gathered that the property covered by Ext.A1 is the property of the family. Insofar as Ext.A5 is concerned, serious dispute was raised by the 1 st defendant denying its execution and specifically denying the signatures therein. But no such evidence forthcoming. Thus nowhere from records except Ext.A5, it could be gathered that the property covered by Ext.A1 is the property of the family. Insofar as Ext.A5 is concerned, serious dispute was raised by the 1 st defendant denying its execution and specifically denying the signatures therein. According to the learned counsel for the 1 st defendant, a mere perusal of the signatures in Ext.A5, in all the pages, the signatures differ from that of the 1 st defendant with that of in Exts.A3 and A4. In this context, it is relevant to note that as per the recitals in Ext.A5, the allegation of the plaintiffs is that the 1 st defendant agreed to execute sale deeds in favour of Gouri, Balan, Vallikutty, Rambha and Omana with respect to 10 cents of property and in favour of Raghu to the extent of 5 cents, without any consideration. Be it so, what is the hurdle for the beneficiaries therein to execute the sale deed itself instead of executing Ext.A5. Even though the plaintiffs have a contention that as on 09.09.2011 draft sale deeds as Ext.A5 and Ext.A6 were prepared, the same could not be a ground to believe Ext.A5. In the draft sale deeds, the consideration and other details are not included also. As I have already pointed out, when the plaintiffs allege that Ext.A1 property was purchased by the funds of the family, the said aspects should be proved by cogent and convincing evidence. Non- execution of the sale deed itself in terms of Ext.A5, instead of executing Ext.A5, if the same was the outcome of mediation talks in between the parties, would show that Ext.A5 is not a genuinely executed document. If so, the trial court is right in holding that the plaintiffs failed to prove their case so as to get the prayers in the suit. Ultimately, it is held that Ext.A5 is not a family settlement. Therefore, the verdict under challenge does not require any interference and the same is only to be confirmed. Accordingly, the regular 1 st appeal fails and is dismissed. Considering the facts of this case, the parties shall suffer their respective costs. All interlocutory orders stand vacated and all interlocutory applications pending in this appeal stand dismissed. Registry is directed to forward a copy of this judgment to the jurisdictional court forthwith.