(sic)mal Mulchand and Others vs (sic) Mulchand and Others

Mehta, J.—This second appeal is preferred by the Plaintiff Appellant Rajmal s/o Mulchand.

Plaintiff Rajmal and his three sons Ram-niwas, Gulabchand and Ramanand, filed a suit for declaration that the sale of the house at Bombay Bazar, by the Defendant No. 1 Parabai widow of Mulchand and step-mother of the Plaintiff is without legal necessity and unauthorized. Parabai sold the house to Defendant No. 2 Din Mohammad and the sale was made in favour of Din Mohammad despite the notice. Din Mohammad sold the property to Defendants 3 and 4 Akabarali and Usufali. Plaintiff''s case is that the sale is not binding on them.

In her written statement, Defendant No. 1 Parabai contended that she is the absolute owner of the house in dispute, which was left to her by her deceased husband under a family arrangement made on 29th June, 1953 vide Ex. D/4. Parabai further contended that after the death of her husband Mulchand, when, she came into possession of her husband''s properties under the family arrangement Ex. D/4, the Plaintiff brought a suit against her in the Indore High Court and that suit was decided on 20th January 1922, dismissing Rajmal''s suit for possession (Vide Civil Original Suit No. 6 Of 1917). Ex. D/2 is the copy of the judgment of the High Court. Parabai contended that the civil suit No. 6 of 1917 operated as res judicata. She pleaded bar of limitation. She further contended that the Court had no jurisdiction as the value of the suit is 4000/-. The court- fee paid was inadequate.

Plaintiff''s suit was dismissed by the trial Court on the ground that there was familyarrangement as evidenced by Ex. D/4, whereby plaints Rajmal relinquished his rights to Mulchand''s property. It was held that the sale by Parabai was not for legal necessity. Parabai was not in possession of the entire house, but some portion thereof and the purchaser Defendant No. 3, is in possession of only a portion and not the entire house. Ex. D/4 document shows the family arrangement. Parabai became the absolute owner of the properties of her deceased husband Mulchand under the family arrangement. The trial Court therefore, dismissed the Plaintiff''s suit with costs.

Plaintiff preferred an appeal to the District Judge, but the District Judge also dismissed the appeal with costs. Hence this second appeal.

The important point for consideration in this second appeal is as to the nature of document Ex. D/4 and whether it was a family arrangement which conferred an absolute title on Parabai. This document Ex. D/4 is executed by Rajmal on 29th June, 1913 and is signed by Rajmal. In this document Rajmal states that as there are frequent domestic bickerings, so, for maintaining the family''s harmonious relations, he has agreed to separate himself from the family after taking his share. He has admitted having received Rs. 13000/- as cash, Rs. 1000/- as gold and silver ornaments and Rs. 2500/- worth one immovable property in Kunjada Bakhal. In all he admits having received Rs. 16500/- and states that he has now no rights or interest in the remaining property belonging, to Mulchand.

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Mr. Chitale, learned pleader for the Appellant contended that Ex. D/4 is not a family arrangement, but it is a deed of relinquishment executed by Rajmal in favour of his father Mulchand. After the execution of document Ex. D/4, Mulchand did not make any disposition either oral or in writing in favour of Parabai. Mr. Chitale contended that this deed of relinquishment executed by Rajmal is hit by Section 6(a), T.P. Act, which states that the chance of an heir-apparent succeeding to an estate, the chance of a, relation obtaining a legacy on the death of a kinsman, or, any other mere possibility of a like nature, cannot be transferred. Rajmal had no authority to relinquish and thereby transfer to Parabai spes successionis, and therefore it is bad in law. Mr. Chitale argued that a Hindu reversioner has no right or interest in praesenti in the property which the owner holds for life, until it vests in him. His right becomes accrued only after the demise and therefore, he has nothing to transfer. Mr. Chitale argued that Rajmal, so long as his father was alive, had no right to transfer his spes successionis in favour of his mother and such a transfer is hit by Section 6(a) of the Transfer of Property Act.

Mr. Chitale mainly relied on a decision reported in - Balkrishna Trimbak v. Savitribai 3 Bom 54 (A). In this decision it was held that the effect of a Hindu son relinquishing for a sum of money his share in the property of his father, natural or adoptive, and agreeing not to claim it during or after his father''s life time, is to place him in the position of a separated son. The relinquishment does not amount to disherison. If, therefore, the father on such relinquishment makes an alienation of his estate, it will take effect, but otherwise his separated son will inherit in preference to his widow. A son by birth or adoption can for adequate reasons be disinherited, but the course of devolution prescribed by the law cannot be altered by a private arrangement, on the disherison of the son, the son''s son becomes his grandfather''s lawful heir.

In this case, Trimbak the adopted son of Govind, by receiving a sum of money in lieu of his share in estate, and by executing a document of Pharkat, placed himself in the position of a divided son. The community of property between the father and divided son was spes successionis and had Govind alienated his estate, Trimbak could not have interfered. Had Govind, therefore, bequeathed his estate to Radhabai and Plaintiff Savitribai, the bequest would have taken effect. But in the absence of such a bequest or other exercise of the uncontrolled power vested in Govind, the succession to his estate must be governed by the provisions of Hindu Law. The Hindu Law assigned inheritance to even a separated son in preference to a widow. Their Lordships further observed that the course of devolution prescribed by law cannot be altered by a private arrangement.

In the case of - Hardei v. Bhagwan Singh AIR 1919 PC 27 (B), the facts were that a Hindu died in 1856 leaving him surviving a widow and three daughters, and his estate devolved (Sic) widow. In 1875 an arrangement was arr(Sic) whereby the widow divided the whole of the (Sic)perty among her three daughters and her(Sic)sons then living. The daughters and gr(Sic) entered into immediate possession of their (Sic) and mutation of names was effected in(Sic)favour. Subsequently each of the daughter(Sic) with the property allotted to her on the(Sic)as her own absolute property. In 1884 one (Sic)daughters sold a portion of her share of the (Sic)perty to the Defendant. She died in 1912(Sic) in 1913, her surviving sister brought a suits(Sic)covery of possession of the property alleging(Sic) the property had belonged to her father(Sic) that in consequence of the death of her, (Sic)and sisters she had become the sole heir(Sic) father and was entitled to possession. It (Sic)by their Lordships, of the Privy Council(Sic) the Plaintiff was bound by her own(Sic)ment and that in view of the long period(Sic) Which had elapsed since the arrangement(Sic) made, she could not be allowed to repudia(Sic) agreement and to impeach a sale which was (Sic) on the faith of it.

In the case before us also Rajmal had(Sic) into a distinct agreement with his father(Sic) chand that he should be given 16,500/- rupee that he should be considered as having (Sic)ed from the joint family and that he will(Sic) no claim in future, to the remaining property (Sic)his father and that his father may give the(Sic)tire remaining property to his mother an to be considered absolute property of Para(Sic) view of this agreement of family arrange(Sic) which was acted upon for such a long time(Sic)mal cannot now repudiate the agreement(Sic) contend that his mother Parabai had no abso(Sic) estate and she could not alienate it. Such a (Sic)arrangement is not against the provisions of(Sic) Law, nor it is hit by Section 6(a), T.P. Act.

In a similar case, - Rai Kumar Singh and Another Vs. Abhai Kumar Singh and Others, facts were in a partition suit between A (Sic) the parties arrived at a compromise. The (Sic) of each were defined and they went into(Sic)diate possession of the properties. It was (Sic)that they would not claim any share which (Sic)otherwise have accrued to them on the death (Sic)either of the parties. It was held that the(Sic)did not deal with any future rights in any property. They were anxious that the (Sic) which was being allotted to either of the (Sic)should never go out of that branch. The (Sic)promise was not hit by any rule of Hindu (Sic)by the provisions of Section 6(a), Transfer of Prop(Sic) Act. It was further held in that case, (Sic)order that an agreement between the mem(Sic) of the family can be treated as a family (Sic)ment, it is not necessary that it must be that there was a dispute as to title between(Sic) parties and that the agreement was by(Sic) accepting the antecedent title of the parties properties.

In - Umashanker v. Ramcharan (Sic)1939 All 689 (D), it was held that the (Sic) or relinquishment for consideration of the of a Hindu reversioner would be void under (Sic)tion 6(a) of Transfer of Property Act as the (Sic)fer of a mere spes successionis, but such a (Sic)fer or relinquishment would be valid (Sic)where a part and parcel of the family settlement (Sic) a compromise in a dispute between rival(Sic) to property.

In - AIR 1947 164 (Oudh) , a suit for posses(Sic) property was filed by the reversioners(Sic)daughter''s daughter of the last male owner (Sic)nig to be the next heir sought to be implead-(Sic)one of the Plaintiffs. A deed of family (Sic)ent was entered into between v. and the (Sic)fs reversioner. By this deed the parties to fight out the case jointly on the title of them and to divide the property between(Sic)in certain specified shares. The rights allot-(Sic) to all the parties were of the same nature and(Sic) was no limitation placed upon the rights of (Sic)with regard to the property allotted to his or (Sic)share. It was held that the rights of the (Sic)es to the deed were governed by its terms not by any rule of law of inheritance and(Sic) had acquired a full estate in her share which her death passed to her heirs.

On a careful construction of the document (Sic)D/4 and in the light of the rulings cited by (Sic)above, it appears to me that Ex. D/4 is a (Sic)arrangement whereby in consideration of (Sic)ing received Rs. (Sic)/- Rajmal separated from Joint family (Sic)and agreed that, he has no claim (Sic)oever to the remaining estate of his father (Sic) that his father could give absolute title of (Sic) (Sic) properties to his mother Parabai. In my opi(Sic) this family arrangement is not hit by the (Sic)visions of Section 6(a), Transfer of Property Act, (Sic)use it is part and parcel(Sic) of the family arrangement which have been recognized by several deci(Sic) referred to by me above. It is not neces(Sic) for Mulchand to make any disposition either or in writing in favour of Parabai as a part (Sic)the family arrangement, the document Ex. D/4 (Sic)fared on Parabai, an absolute title. This was to keep the family peace and harmony.

For reasons aforesaid, the ruling in - ''3 (Sic) 54 (A)'', is concerned more with the fact that (Sic)separated son will inherit in preference to a (Sic)low. There is no consideration in this case(Sic) the family arrangement and what is its (Sic)There is a question simply of the widow''s(Sic) of succession and naturally the Court held (Sic) the separated son is a preferential heir to a(Sic)

(Sic)For reasons aforesaid, I confirm the judg(Sic) and decree of the Courts below and dismiss appeal with costs throughout.