# SHAMBHU PRASAD SINGH v. MST. PHOOL KUMARI & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 181
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Case number:** Civil Appeal No. 1655 of 1966
- **Bench:** J. M. Shelat, I. D. Dua, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shambhu-prasad-singh-v-mst-phool-kumari-ors-5511
- **Pages:** 19

## Headnote

Hindu Law-Family arrangeme11t-Principles for deciding wh<'lher a
doc111nent is jan1ily arrange111ent.
Adverse possession-When established.
Raj Kun1ar, the common ancestor of the parties had four sons-Lalji
Singh, Amar Singh, Ramji Singh and Raghunandan Singh.
Amar Singh
had three sons, namely, Sonadhari. Girwardhari and Nankhu father of
present appellant.
In 1898 Amar Singh purchased the land on which the
house in dispute stood from his own funds but in the name of his brother
Lalji Singh.
Nankhu was taken in adoption by Ramji Singh.
Shortly
thereafter, in 1915, a document .Ex. l was executed between Raj Kumar's
descendants.
In it the claim of Nankhu to a half share in the house in
dispute \\'as recognised.
Tn
1949, Nankhu and the appellant filed
the
instant suit for a declaration of their half share in the house in dispute.
The defendants (present respondents) were the branches of Sonadhari and
Girwardhari. The suit Vias resisted inter alia on the following grounds:
(i) that Ex. I was not a family arrangement but only a deed of relinquishment; and therefore Nankhu who had no anterior title to the house in
dispute did nOt acquire any interest in it by virtue of Ex. I: (ii) that even
if he had an interest in the house he lost it by reason of adverse possession by the respondent. The trial court decreed the suit. The decree was
upheld by the Single Judge of the High Court. The
Division
Benoh
however decided both the points of dispute in favour of the respondents.
It held that there was no dispute or conflict of interest between the branches
of Amar Singh and Ramji Singh, and that Amar Singh and Nankhu had
acted in concert in the execution of Ex. I which was therefore not a family
arrangerr,ent.
It upheld the claim of the respondents that Nankhu and
the appelb.nt had lost title to the house by the adverse possession of the
respondentli. The visits of Nankhu and hi;; wife to the house were he!d
by the Division Bench to be 'in the nature of visits of guests of the defendants'. In appeal to this Court against the judgment of the High Court.
HELD: (i) The arrangenient under challenge has to be considered as
a whole for ascertaining v.·hether it was made to allay disputes, existing
or apprehended, in the interest of harmony in the family or the preservation of property.
lt is not necessary that there must exist a dispute
actual or possible in the future, in respect of each and every item of property among all members arraigned one against the other. It v.·ould be suffi.
cient if it is shown that there were actual or possible claims and counterclaims by parties in settlement whereof the arrangement as a whole had
been arrived at, thereby ackDO\vledging title in one to whom a particular
property falls on the assumption (not actual existence in law) that he had
an antelior title therein. [191 F-GJ
Pullaiah v. Narasilnluun, A.LR. 1966 S. C. 1837, Sahu Madho Das v.
M11kund Ranr, [1955] 2 S.C·.R. :?1 and Rani Mewa Kuwar v. Rani Hulas
Kuwar. (1873-74) LR. l I.A. 157 at 166, applied.
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Williams v. Williams, (1867) 2 Ch. A. 294, referred to.
An examination of the terms of Ex. 1 showed that it was iocorm:I I<>
assume, as the High Court did, that in the disputes amongst the different
branches of the family, Nankhu and Amar Singh were actina in~.
or that there was no conflict of ioterest among them. The parties to Ex.
1 arrived at a settlement in view of claims and cross claims by 10n.e aa;ain'it
the others. Taken as a whole and in the light of the recitals and tho
statements in the operative part of the document indicating conflict amongst
the members of the family, the document represented an arrangement bona
fide entered into, for settling existing or at any rate apprehended disputes,
and therefore, satisfied the tests of a family arrangement laid down in the
decisions of th~ Court. In this view Nankhu must be said to have ac~
quired a half share in the house in disput

## Text

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SHAMBHU PRASAD SINGH
v.
MST. PHOOL KUMARI & ORS.
March .24, 1971
[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.)
Hindu Law-Family arrangeme11t-Principles for deciding wh<'lher a
doc111nent is jan1ily arrange111ent.
Adverse possession-When established.
Raj Kun1ar, the common ancestor of the parties had four sons-Lalji
Singh, Amar Singh, Ramji Singh and Raghunandan Singh.
Amar Singh
had three sons, namely, Sonadhari. Girwardhari and Nankhu father of
present appellant.
In 1898 Amar Singh purchased the land on which the
house in dispute stood from his own funds but in the name of his brother
Lalji Singh.
Nankhu was taken in adoption by Ramji Singh.
Shortly
thereafter, in 1915, a document .Ex. l was executed between Raj Kumar's
descendants.
In it the claim of Nankhu to a half share in the house in
dispute \\'as recognised.
Tn
1949, Nankhu and the appellant filed
the
instant suit for a declaration of their half share in the house in dispute.
The defendants (present respondents) were the branches of Sonadhari and
Girwardhari. The suit Vias resisted inter alia on the following grounds:
(i) that Ex. I was not a family arrangement but only a deed of relinquishment; and therefore Nankhu who had no anterior title to the house in
dispute did nOt acquire any interest in it by virtue of Ex. I: (ii) that even
if he had an interest in the house he lost it by reason of adverse possession by the respondent. The trial court decreed the suit. The decree was
upheld by the Single Judge of the High Court. The
Division
Benoh
however decided both the points of dispute in favour of the respondents.
It held that there was no dispute or conflict of interest between the branches
of Amar Singh and Ramji Singh, and that Amar Singh and Nankhu had
acted in concert in the execution of Ex. I which was therefore not a family
arrangerr,ent.
It upheld the claim of the respondents that Nankhu and
the appelb.nt had lost title to the house by the adverse possession of the
respondentli. The visits of Nankhu and hi;; wife to the house were he!d
by the Division Bench to be 'in the nature of visits of guests of the defendants'. In appeal to this Court against the judgment of the High Court.
HELD: (i) The arrangenient under challenge has to be considered as
a whole for ascertaining v.·hether it was made to allay disputes, existing
or apprehended, in the interest of harmony in the family or the preservation of property.
lt is not necessary that there must exist a dispute
actual or possible in the future, in respect of each and every item of property among all members arraigned one against the other. It v.·ould be suffi.
cient if it is shown that there were actual or possible claims and counterclaims by parties in settlement whereof the arrangement as a whole had
been arrived at, thereby ackDO\vledging title in one to whom a particular
property falls on the assumption (not actual existence in law) that he had
an antelior title therein. [191 F-GJ
Pullaiah v. Narasilnluun, A.LR. 1966 S. C. 1837, Sahu Madho Das v.
M11kund Ranr, [1955] 2 S.C·.R. :?1 and Rani Mewa Kuwar v. Rani Hulas
Kuwar. (1873-74) LR. l I.A. 157 at 166, applied.
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Williams v. Williams, (1867) 2 Ch. A. 294, referred to.
An examination of the terms of Ex. 1 showed that it was iocorm:I I<>
assume, as the High Court did, that in the disputes amongst the different
branches of the family, Nankhu and Amar Singh were actina in~.
or that there was no conflict of ioterest among them. The parties to Ex.
1 arrived at a settlement in view of claims and cross claims by 10n.e aa;ain'it
the others. Taken as a whole and in the light of the recitals and tho
statements in the operative part of the document indicating conflict amongst
the members of the family, the document represented an arrangement bona
fide entered into, for settling existing or at any rate apprehended disputes,
and therefore, satisfied the tests of a family arrangement laid down in the
decisions of th~ Court. In this view Nankhu must be said to have ac~
quired a half share in the house in dispute under Ex. I. [193 H, 194 E-G]
(ii) Adverse posses.sion has to have characteristics of adequacy, conti~
nuity and exclusiveness. The onus to establish these characteristics is on
the adverse possessors.
Accordingly, if a holder of title proves that be
too had been exercising during the currency of his title various acts of
possession, then, the quality of those acts, even though they might not be
sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness
and continuity which is demanded from a person challenging by possession
the title which he holds. As between co-sharers, the possession of one con
sharer is in law the possession of all co-sharers. Therefore to constitute
adverse possession, ouster of the non-possessing co-sharer has to be made
out. As between them therefore, there must be evidence of open assertion
of a hostile title coupled with exclusive possession and enjoyment by one
of them to the knowledge of the other. But once the possession of a cosharer has become adverse as a result of ouster, a mere assertion of a
joint title by the dispossessed co-sharer would not interrupt the running
of adverse possession.
He must actually and effectively break up the
exclusive possession of bis co-sharer by re-entry upon the property or
by resuming possession in such ~ manner as it was possible to do. For
this purpose the mere fact that a dispossessed co-sharer comes and stays
for a few days as a guest is not sufficient. [194 H-195 El
Kutha/i Moothavar v. Paringati Kunharankutcy, (1921) 48 LA 395,
404, Lakshmi Reddy v. Lakshmi Reddy, [1957) S.C.R. 195, 202, Moham·
mad Bagar v. Naim-un-Nisa Bibi, A.l.R. 1956
S.C. 548
and Wantakal
Ya/pi Chenabasavana Gowd v. Y. Mahabaleshwarappa, [1955] 1 S.C.R.
131, 138, followed.
A.mmakannu A.mmal v. Naravanaswami Mudaliar, A.l.R. 1~23 Mad.
633, approved.
Io view of the evidence in the present case the Division Bench was
not justHied in interfering with the finding of fact concurrently given by
the Trial Court and the learned Single Judge that the adverse possession
by Baijnath which commenced from 1933 was sufficiently interrupted by
acts of possession by Nankhu, and therefore his title was not extin&uished
by adverse possession. [199 A·Bl
H
The appeal must accordingly be allowed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1655 of
1966.
s. P. SINGH v. PHOOL IWMARI (She/at, J.)
183'
Appeal from the judgment and decree dated August 25, 1964
A.
of the Patna High Court in Letters Patent Appeal No. 119 of 1958.
D. Goburdhun and R. Goburdhun, for the appellant.
S. V. Gupte, D. P. Singh and N: Nettar, for respondent No. I.
U. P. Singh for respondents Nos. 2 to 4.
The Judgment of the Court was delivered by
Sbelat, 1.-Two questions arise in this appeal. The first is
whether the transaction evidenced by Ex. 1, dated March 20,
191 S was a family arrangement so as to confer on the appellant
and bis father, Nanhku Prasad, smce deceased, title to a half
share in the house in dispute. The second is that even if it was
so, whether such title became extinguished as a result of adverse
possession for the statutory period by Baijnath, the deceased
husband of respondent I.
The parties are near relations.
The following
genealogy
explains the relationship amongst them :
Lalji Singh
I
I
l
Sub• F•UJdar
I
.
Sonadhar1
I
Tarkc•hwar Pd.
alias Daljit
(Deft. No. 2)
I
(sons of Deft.
2-Nos. 3 to 7)
Rajkumar Singh
I
Amar 1singh
Ramjj Singh
Reshmi Kuer
Patreja Kuor
I
Balkcshwar
I
Deena th
Girwardhari
Baijnacl Pd. alias
NanuBabu
died in 1948
Phu! Kumari Devi
(widow)
Deft. No. 1.
I
NanhkuPd.
Singh
(PIH'. No. I)
Sham~Pd.
Singh
(PIH'. No. 2)
I
Raghunandan
Singh
Kamaldhari
I
KamtaPrasad
There is no dispute that Amar Singh purchased from
his
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own funds under a registered deed, dated January 20, 1898, the
fl
Uand on which the house in dispute stands.
His son, Nankhu,
the deceased father of the present appellant, was taken in adoption sometime prior to March 20, 1915 by Ramji Singh and bis
wife Patreja Kuer as they had no issue, whereupon Nankhu ceased
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to have any interest in the properties owned by Amar Singh and
his_ branch.
In 1933, Nankhu and the present appellant, then
a minor, filed Suit No. 33 of 1933 against Sonadhari Tarkeshwar,
Baijnath and Reshmi Kuer (the widow of Amar Singh, wrongly
described by the High Court as the wife of Rajkumar in tlie
genealogy set out in its judgment) in respect of certain properties.
which had nothing to do with the house in dispute. The written
statement filed in that suit was that Nankhu had been paid the
price of his share in the house in dispute and that the entire
house, consequently, belonged to and was since then in the exclusive possession of the defendants. That suit went upto the
High Court when in 1941 a compromise application was filed by
the parties settling that suit.
But, as the suit had nothing, as
aforesaid, to do with the house in dispute, nothing was
said
about the allegation that Nankhu had been paid off ih respect
of his interest in that house.
In 1949, Nankhu and the appellant filed the instant suit for
:a declaration of their half share in the house in dispute.
In
answer to the suit, the respondents raised three defences : (!) that
Nankhu and the appellant derived no interest under Ex. I. Q)
that assuming that they derived such interest, it was relinquished
by them on being paid the price thereof, and (3) that in
any
event they Jost their interest by reason of adverse possession by
the respondents The Trial Court rejected all the three defences
raised by the respondents and decreed the suit, holding that Nankhu
had acquired one half share in the said house under Ex. I.
Against that decree, two appeals were filed in the High Court,
one by respondent 1 and the other by some of the other respondenls. These appeals were heard first by a learned Single Judge
of the High Court. Before the learned Single Judge, the finding
of the Trial Court that Nankhu and the present appellant had
not relinquished their interest in the house on their being paid
the price thereof was not disputed. The only questions agitated
before the learned Single Judge, therefore, were whether Nankhu
Jtad a half share, that is to say, whether he derived his title to
lhe half share under and by virtue of Ex. I, and if so, whether
he lost it as a result of adverse possession by the respondents.
In respect of the first question, the parties urged two conflicting pleas.
Nankhu and the appellant contended that Ex. I was
a family arrangement under which he got half share in the house
and. that that family arrangement was valid and binding on the
parties. The respondents, on the other hand, contended that
Ex. I was only a Ladavi deed, that is, a deed of relinquishment. The argument on behalf of Nankhu and the appellant
was
that there were
outstanding
disputes
between
the
different branches of the family of Rajkumar, and those disputes
t
s. P. SINGH v. PHOOL KUMAR! (She/at, J.)
were ultimately settled at the instance of and with the aid of
certain family friends resulting in Ex. 1 by way of a family
~•rrangement. Therefore, even if Nankhu and the appellant were
not able to show their anterior title to the house, they were
entitled under Ex. J to a half share therein. The learned Single
Judge accepted the contention raised by Nankhu and the appellant.
His reasoning in this connection was that although the land on
which the suit house stood was purchased by Amar Singh out
of his own funds, it was purchased in the fur~i name of Lalji,
but there was no evidence that Lalji ever admitted to
be the
fur~idar of Amar Singh. Consequently. though Nankhu, by his
"doption. lost all interest in the properties of Amar Singh, yet
the fact that in Ex. I Amar Singh acknowledged Nankhu having
a half share in the house indicated that there was some apprehension in the mind of Amar Singh of a future dispute and that
it was such an apprehended dispute which Ex. I. while dealing
with the house. settled. The learned Single Judge added
that
even assuming that there was no existing or apprehended dispute
and the settlement was made out of consideration for the peace
of the family or preservation of its properties, the
settlement
would have to be regarded as a family arrangement. Regarding
the plea of adverse possession, he upheld the finding
of the
Trial Court that Nankhu and the appellant had established their
acts of possession during the statutory period. and that conse·
quently, the continuity and exclusiveness of the respondents'
adverse possession had been disrupted.
On these findings. he
dismissed the appeals and confirmed the decree passed by the
Trial Court.
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Respondent I thereupon filed a letters patent appeal which
was heard bv a Division Bench of the High Court. The same
two questions were reagitated. namely. as to the nature of Ex. 1,
:rnd as to the adverse possession.
On the first
question. the
F
reasoning adopted bv the Division Bench was on ihe following
lines :
·
-
(!) that the executants of Ex. 1 formed three conflicting
groups, namely,
-
ta) Suba, Faujdar and Balkeshwar. constituting one group
G
of members of Lalji's branch, being executants 1 to 3;
tbl Raghunandan and his son. Kamaldhari. being
executants 4 and 5 and constituting Raghunandan's
branch; and
-
-
(c) Amar Singh for himself and as the guardian of Baijnath,
then a minor, Sonadhari for himself and as guardian
of his minor son, Tarkeshwar, and Nankhu, who had,
H
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as earlier stated, gone to the line of Ramji on his
adoption, being executants 6, 7 and 8;
(2) that the disputes, in settlement of which Ex. l was executed by these three groups, were, as its recitals sh0w :
(a) conflicting claims made by the said three sets of executants as to whether they were joint or separate in
status, the claim of executants l to 3 being that all
the members of Rajlrumar's family were still members
of an undivided Hindu family, and that therefore,
11lthough the properties stood in the names of and
were in possession of individual members, they continued to be joint family properties including properties standing in the names of female members, namely,
Reshmi and Patreja;
(b) the allegation by executants 4 and S (Raghunandan's
branch) that all the four branches of Rajlrumar's four
sons were separate and yet claiming share in the properties standing in the names of members of Lalji's
branch, and
(c) the claim by executants 6, 7 and 8
(Amar Singh,
Sonadhari and Nankhu-by now in the line of Ramji)
that the parties were separate in status, and therefore,
the properties in the names of the two said females
belonged exclusively to them and the members of- the
other branches had no interest whatsoever in them;
(3) that the Trial Court and the learned Single Judge were
in error in holding that what Ex. l did was to evidence
relinquishment by the rest of the members of the family
of their claims in properties standing in the names of
or in possession of particular members, and thereby
acknowledging their anterior title in such properties.
In fact Nankhu had no such anterior title, nor could be
in law have any such title in the house in dispute in
view of bis having got out of Amar Singh's branch as
a result of his adoption by Ramji;
(4) that there was no subsisting or apprehended dispute between Amar Singh and his family, on the one band, and
Nankhu on the other, the latter not having made any
claim for a share in the house in dispute, and that therefore, there was no question of preservation of peace or
family property, there being nothing on record to show
that Nankhu had held out any threat to the family peace
or pro~ therefore, there was a total want of mutuality as in consideration of Nankhu getting a half share.
s. P. SINGH v. PHOOL KIJMAlll (Shelat,J.)
Amar Singh got nothing in return and cases of the type
of Williams v. Williams(') had no application;
(5) that the recitals in Ex. 1 showed that the only dispute
which prevailed at the time was "branchwise" and in
that dispute Nankhu did not set up any contest against
Amar Singh and his branch and indeed, both of them
acted in concert, both claiming that the members of
Rajkumar's family were separate and the properties standing in the names of Reshmi and Patreja were their
exclusive properties;
(6) that acknowledgement of exclusive title of Amar Singh
and Sonadhari (exccutants 6 and 7) to certain properties,
and likewise acknowledgement of exclusive title of
Nanhku (executant No. 8) to certain other properties
set out in paras 3 and 4 of Ex. 1 were not by way of
settlement of any existing or apprehended dispute between them, and therefore, that part of Ex. 1 could not
be regarded as providing any consideration for conferring the half share in the disputed house on Nanhku.
On this reasoning the Division Bench declined to treat Ex. 1
as a family arrangement. The conclusion of the Bench clearly
signified that it had relied on two fundamental premises: (1) that
there were only three sets of executants, the third set consisting
iof executants 6, 7 and 8, and (2) that Amar Singh and Nanbku
ltad acted in concert as there were no conflicting claims by and
between them.
In view of this conclusion there was no need for the Division Bench to go into the question of adverse possession. However, it decided to do so for the reason that although the finaing
on the question of adverse possession was concurrent, it had been
seriously challenged before it.
On this question, the
Division
Bench firstly relied on the Municipal Assessment Register for·
1900-1901, (Ex. D), and the extract from the Demand Register
of a Patna Municipality for 1915-16, <Ex. E). Ex. D showed the
name of Amar Singh as the sole owner of the. property. Ex. E
1111entioned Sonadhari and Baijnath only as the owners of the
house as Amar Singh had died soon after Ex. 1 was brought into
existence. The Division Bench was impressed by the fact that
though only recently, in March 1915, Nanhku's half share in tlie
house had been acknowledged in Ex. I, his name was deliberately
omitted in Ex. E, which meant that Sonadhari and Baijnath had
;openly asserted their title to the whole of the house and yet
Nanhku took no steps to assert his title. Nor did he at any time
(I) [1867] 2 Ch. A. 294.
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'pay his share of the municipal taxes and the costs of
repairs
carried out later on by Baijnath. The Division Bench was also
impressed with the fact that even when Baijnath, in his written
statement in suit No. 33 of 1933, claimed that Nanhku's share
had been paid off and he had since then been in exclusive posses·
sion of the entire house, Nankhu took no steps to vindicate his
title until he and his son filed the present suit in 1949 The
Division Bench came to the conclusion that there was not only
an assertion of a hostile claim by Baijnath but that that assertion
was accompanied by an ouster which remained open and
continuous throughout the statutory period.
As regards the evidence
1that Nanhku and sometimes his wife came and stayed i" the
house, the Division Bench took the view that these were casual
,-isits "in the nature of visits of guests of the defendants". and
therefore, did not have the effect of interrupting the continuity
and the exclusiveness of possession by the
respondents.
The
Bench even observed that the respondents had completed
their
title by adverse possession long before Baijnath claimed
exclusive possession in his said written statement in I 933.
In
this
view, the Division Bench held that Nanhku's title in the house
was extinguished by adverse possession.
The
Division
Bench
accordingly allowed the respondents' appeal with costs all throughout.
Both the conclusions of the Division Bench
have
been
challenged before us as incorrect.
On the question as to the nature of Ex. 1 a large number
of decisions were cited at the bar to show when a transaction
,can be said to be a family arrangement. It is not necessary to
advert to them as most of them have been considered by this
Court in its previous decisions, wherein principles as to when
an agreement can properly be regarded as a family arrangement
have been set out. Thus, in Pullaiah v. Narasimham(')
after
setting out how courts in England view
family
arrangements,
Subba Rao. J. (as he then was) observed that the
concept of
such a family arrangement has also been accepted by courts in
India. adapting the concept to suit the family set up in
this
country which is different in many respects from that obtaining
in England.
After examining some earlier decisions which
he
characterised as illustrations of how family arrangements
were
viewed. he summarised the Jaw as to a family arrangemect as
follows: --
"Briefly stated, though conflict of legal claims
i•1
praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.
Even bona fide disputes, present or possible, which may
(I) A. I. R. 1966 S. C. 1837.
s. P. SINGH v. PHOOL KUMAR! (She/al, J.)
189
not involve legal claims will suffice. Members of a joint
A
Hindu family may, to maintain peace or to bring about
harmony in the family, enter into such a family arrangement. If such an arrangement is entered into buna fide
und the terms thereof are fair in the circumstances of
a particular case, Courts .will more readily give assent to
such arrangement than to avoid it".
B
Eve~ in England, family arrangements are viewed as arrangements governed by principles Which are not applicable to dealings between strangers. The courts, when deciding the rights of
parties under family arrangements, consider what is most
for
the interest of families and have regard to considerations which
in dealings 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.
(see
Halsbury's Laws of England, (3rd Ed.), Vol. 17, 215). Thus, in
Williams v. Williams(') the Court held that a family arrangement
might be such as the court would uphold although there were
no rights in dispute, and if sufficient motive for the arrangement
was proved, the Court would not consider the adequacy of consideration.
But the question of· consideration or mutuality would
arise, as Williams' case(') shows, when other considerations, such
as existing or an apprehended dispute or the question of preser-
,'vation. of property or honour of the family, are absent, so that
it is not necessary for a valid family arrangement that there must
exist actual competitive claims or disputes or that the arrangements must be backed by proper consideration.
Even disputes
3ikely to arise in future or preservation of family property and
honour would be sufficient to uphold an arrangement bona fide
1rnade between the members of a family.
What actually happens when such a family arrangement is
lrnade is explained by Bose, J., in Sahu Madho Das v. Mukund
Ram\') in the following words :
"It is well settled that a compromise or family
arrangement is based on the assumption that there is
an antecedent title of some sort in the parties and the
agreement acknowledges and defines what that title is
each party reli!lquishing all claims to property other tha~
they had previously asserted, to the portions allotted to
them r~spec.tively. That explains why no conveyance
~ reqmre~ m ~hese cases to pass the title from the one
Ill whom 1t resides to the person receiving it under the
11) [1867] 2 Ch. A. 294.
(2) [19SS] 2 S. C.R. 22.
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family arrangement. It is assumed that the title claimed
by the person receiving the property under the arrangement had always resided in him or her so far as tbe
property falling to his or her share is concerned and
therefore no conveyance is necessary."
He went on to say that this was not the only kind of arrangement which the courts would uphold, and that they would take
the next step of upholding "an arrangement under which one
'set of persons abandons all claims to all title and interest in all
the properties in dispute and acknowledges that the sole and
!absolute title to all the properties resiaes in only one of their
number (provided he or she had claimed the whole and made
such an assertion of title) and are content to take such properties
as are assigned to them as gifts pure and simple from him or
her or as a conveyance for consideration when consideration is
present". In such a kind of arrangement where title in the
ientire property is ackowledged to reside in only one of them
and thereupon that person assigns parts of it to others there
would be a transfer by that agreement itself which obviously irl
such a case would need a registered document.
This decision
lays down the assumption underlying a family
arrangement,
namely, of an anterior title and its acknowledgement in one to
whom a property or part of it falls under the arrangement. (see
also Rani Mewa Kuwar v. Rani Hulas Kuwar('). Therefore, it
is not necessary that there must exist an anterior title sustainable
in law in such a person which the others acknowledge.
The arrangement under challenge has to be considered as a
whole for ascertaining whether it was made to allay disputes,
existing or apprehended, in the interest of harmony in the family
or the preservation of property. It is not necessary that there
1mnst exist a dispute, actual or possible in the future, in respect
of each and every item oi' property and amongst a\! members
\arrayed one against the other. It would be
sufficient if it is
shown that there were actual or possible claims and counterdaims by parties in settlement whereof the arrangement as a
whole had been arrived at, thereby acknowledging title in one to
whom a particular property falls on the assumption (not actual
existence in Jaw) that he had an anterior title therein.
In the light of these decisions we must now examine Ex. 1
to see if the contention of the appellant that it was a family
arrangement is correct or not.
The document Ex. 1, after reciting the death of the common
ancestor, Rajkumar, his leaving him surviving four sons and the
(l} (1873-1874) L. R. 1 I. A. 157. at 166.
s. p. SINGH v. PHOOL KUMAR! (She/at, J.)
191
deaths of certain other family members thereafter, reads as
A
follows :
B
"Signs of ill feeling developed among us, the executants Nos. 1 to 8, and at the time of survey and settlement operations, dispute in connection with the properties
arose.
On account of dispute, wrong statements and
claim were made. On account of which the names of
some of us, the executants were recorded in a wrong
manner in the record of rights and in the office of the
land Registration Department, in respect of some of the
properties having regard to the real state of affairs and
title. At the time of the survey and settlement operations
etc. the claims and allegations of us, the executants Nos. I
to 3, were that we, the executants, are all members of
the joint family and the properties standing in the names
of a certain member of the family as well as those in
the name of certain female member of the family, belong
to the joint family.
Contrary to this, the claims and
allegations of us executants Nos. 4 to 5 were that all the
four sons of Raj Kumar Singh became separate and that
executants Nos. 1 to 3 always continued to remain
separate from the (other) executants and executants
Nos. 4 and 5 separate from the (other) executants and
executants Nos. 6 to 8 separate from the other executants, but in spite of this allegation of separation, executants Nos. 4 and 5, on account of dispute, made
contrary to the real state of affairs with respect to certain
properties owned and possessed by executants Nos. 1
to 3, and executants Nos. 6 to 8 also made allegations
and claims of separation and it was alleged that executants Nos. 1 to 5 (?) neither had nor have any connection
and concern with the properties, which. were and are
in the names Of Mosst. Patriga Kuer and Moss!. Reshmi
Kuer, although no party was member of a joint family,
nor was any property joint. As the dispute among us,
the executants is contrary to the real state of affairs, and
in case the said dispute continues there is apprehension
of consideration loss and damage to us, the executants,
therefore, on the advice of the well wishers of the parties
and of the respectable persons and on the advice of the
legal advisers of the parties, as also with a view to
set at rest all kinds of dispute, it was settled that all
the disputes should be put to an end by executing a deed
of agreement by way of a deed of relinquii!bment of
claims ([adav1) and the
prop~rty, which is actually
owned and possessed by a certain party should be declared to belong to that party exclusively, and as a
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matter of fact, the family of us, the executants, is
separate and the property, which stands in the name of
a certain person, has been purchased from his or her
funds, and in respect of his or her name should continue to remain entered in the land Registration Department etc. and the name should be entered if the same
is not entered and the other parties totally gave up their
claim with respect thereto."
Then follow paras 1 to 4 in each of which certain properties
are set out, and in respect of which, title of each of the four
sets of the executants is acknowledged by tbe
rest.
Para 4,
which relates to properties falling to the share of Nanhku, executant 8, commences with the declaration by the rest of the executants, including Amar Singh and Sonadhari, that Nanhku was
\the adopted son of Ramji and Patreja Kuer, that certain properties set out therein were exclusively acquired by Patreja Kuer
and that Nanhku, as the adopted son of Ramji and Patreja Kuer.
was exclusiively entitled to them on the death of Patreja, and
~hat "we, the executants Nos. 1 to 5, 6 and 7, and the heirs
of executant No. 6 neither have nor shall have any claim, title
or possession and connection in· resj>ect thereof in any manner
and on any allegation".
Following up the am.ngement made
in Paras 1 to 4, four schedules giving particulars of properties
which were acknowledged to be belonging to the four sets of
executants were appended to Ex. 1.
As regards two
houses,
one at Rajipur and the other in dispute, Schs. 3 and 4 both set
out a half share in them as belonging to executants 6 and 7 and
the other half as belonging to executant 8, i.e. Nanhku, in each
of them.
As already stated, the fundamental premise on which the
Division Bench proceeded to consider Ex. 1 was that there were
three sets of executants, namely, those
belonging
to
Lalji's
branch, i.e., executants 1 to 3, those belonging to Raghunandan's
branch, i.e., executants 4 and 5, and the third set consisting of
Amar Singh and Sonadhari executants 6 and 7, and Nanhku,
executant 8.
The second premise on which the Division Bench
rested its entire reasoning was that whereas there were disputes
between the three sets of executants, there were no disputes between Amar Singh, Sonadhari and Nankhu, that in fact the three of
them acted in concert, and that therefore, one half share . given to
Nanhku in the house in dispute was altogether voluntarily given
without any anterior title and without any claim or dispute raised
by Nanhku in respect thereof.
In our view, both the premises
were incorrect rendering the conclusion drawn therefrom untenable.
It is true that Amar Singh had in 1898 purchased out of his
own moneys the land on which the suit house stands.
It is
•
s. P. SINGH'· PHOOL KUMAR! (Shelat,J.)
also true that Nanhku was adopted sometime before the execution of Ex. I. and therefore, on the date of its
execution he
could not have any valid, claim enforceable in law any property
belonging to Amar Singh and his branch. But, as stated earlier,
a dispute or a contention, the settlement of which can constitute
a family arrangement, need not be one which is actually sustainable in law. The harmony in a family can be unsettled even
by competitive and rival claims which cannot be upheld in law.
Therefore, if Amar. Singh and the other executants or some of
them were to challenge, for instance, the factum or the validity
of Nanhku's adoption, or if notwithstanding his adoption, Nanhku
were to make a claim in properties held by Amar Singh and his
hranch or if some of the e.xecutants were to claim
that the
family of Rajkumar was still a joint and undivided family
or
that though the members of the family were separate, the
properties held in the individual names of some of them including
Reshmi K uer and Patreja Ku er were joint, there would be sufficient disputes to constitute a settlement of them a family arrangement.
A claim. made by executants I to 5 that the properties
held_ by Reshmi Kuer and Patreja Kuer were not their separate
properties but were joint family properties, liable to be partitioned amongst all, was bound to affect both Amar Singh and
Nanhku. If such a claim were to be persisted and dragged to
t1 court of law there is no gainsaying that it would ; put into
jeopardy not only the interests of Amar Singh and Nanhku but
also the harmony of the family.
The recitals in Ex. 1 clearly show that whereas
members
of Lalji's branch were claiming that the family was still
joint
and
undivided,
and therefore,
they
had
interest
in
all
the properties irrespective of their standing in the names
0! particular individuals, Raghunandan and his son claimed that
the members of lhe family were not joint and yet clailned share
in all the properties including those standing in the names of
Reshmi Kuer and Patreja Kuer. Thus the claims by executants
1 to 5 were definitely hostile to the interests of Amar Singh to
the extent of the properties standing in the name of Reshmi
K uer and of Nanhku to the extent of the properties standing
in the name of Patreja Kuer. The claims made by the branches
of Lalji and Raghunandan sought to bring all the properties into
botch patch including those held by Reshmi Kuer and Patreja
IKuer, thus, affecting the rights of A\Jlar Singh and Nanhku in
the different properties and not the sam~;!>roperties. Their interests,
therefore, were
not
identical and there was
thus no reason
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soever and nothing in Ex. 1 itself to show that they were acting
In concert as assumed by the Division Bench.
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It is true that the recitals in Ex. 1 do not expressly set out
any conllict of claims between Amar Singh and Nanhku. Never-
:theless, it is significant that in para 4 of Ex. 1 the exccutants
fuimd it necessary to insert therein a declaration not only by
executants 1 to S, but also executants 6 and 7 that Nanhku was
the adopted son of Ramji and Patreja Kuer, that on the deatli
of Patreja Kuer he, as such adopted son, was absolutely entitled
to the properties set out therein in addition to those which stood
in the name of Patreja Kuer. If the adoption of Nankhu was
accepted by all and was not made the subject matter of any
ijoubt or dispute, there was no necessity of including such a
declaration and in particular joining executants 6 and 7 in such
a declaration. If Amar Singh and Nanhku were acting in concert why had Amar Singh and his son, Sonadhari as executants
6 and 7, to be joined as declarants to the adoption of Nanhku.
Para 4 of Ex. 1 also shows that there were certain bonds and
mortgage deeds standing in the name of Patreja Kuer which
jwere acquired from out of the personal funds of Ramji.
Such
a statement had to be acknowledged in paragraph 4 presumably
:because rights in those bonds and deeds were not admitted to
be the exclusive rights of Patreja. If those rights were to be
treated as joint family property, as claimed by executants 1 to S,
Amar Singh would get a share in them and to that extent hls
interest must be said to be in conllict with that of Nanhku.
A
simi1ar result would follow if properties standing in the name of
Reshmi Kuer were to be treated as joint family properties. It
would not, therefore, be correct to assume that in the disputes
amongst the different branches of the family, Nanhku and Amar
Singh were acting in concert or that there was no conflict of
interest between them. In our judgment, the parties to Ex. 1
arrived at a settlement in view of claims and cross claims by
some against the others. Taken as a whole and in the light
of the recitals and the statements in the operative part of the
document indicating conflicts amongst the members of the family,
the document represented an arrangement bona fide entered into,
for settling existing or at any rate apprehended disputes, and
therefore, satisfied the tests of a family arrangement laid down
m the decisions earlier referred to.
In this view Nanhku must
be said to have acquired a half share m the house in dispute
under Ex. 1.
On the question of adverse possession by a co-sharer against·
another co-sharer, the law is fairly we!) settled. Adverse possession has to have the characteristics of adequacy, continuity and
exclusiveness. The onus to establish these characteristics is on
the adverse possessor.
Accordingly, if a holder of title proves
s. P. SINClH v. PHOOL KUMA!tl (She/at, J.)
that he too had been exercising during the currency of his title
various acts of possession, then, the quality of those acts, even
though they might not be sufficient to constitute adverse posses11ion as against another, may be abundantly sufficient to destroy
that adequacy and interrupt that exclusiveness and continuity
which is demanded from a person challenging by possession the
title which he holds. (see Kuthali Moothavar v. Paringati Kunharankutty('). As between co-sharers, the possession of one co-
~harer is in Jaw the possession of all co-sharers. Therefore, to
constitute adverse possession, ouster . of the non-possessing cosharer has to be made out. As between them, therefore, there
must be evidence of open assertion of a hostile title coupled with
exclusive possession and enjoyment by one of them
to the
knowledge of the other.
(see Lakshmi Reddy
v. Lakshmi
Reddy(') and also Mohammad Baqar v. Naim-un-Nisa Bibi.('»
But, once the possession of a co-sharer has become adverse as
a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse
possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property
or by resuming possession in such a manner as it was possible
to do.
(see Wuntakal Yalpi Chanabasavana Gowd v. Y. Mahabaleshwarappa(')). The mere fact that a dispcssessed co-sharer
comes and stays for a few days as a guest 18 not sufficient to
interrupt the exclusiveness or the continuity of adverse possession
so as not to extinguish the rights of the dispossessed co-sharer.
(see Ammakannu Ammal v. Naravanaswami Mudaljar(')).
On this issue, the parties led considerable evidence, oral
and documentary.
On examination of that evidence, both the
Trial Court and the learned Single Judge gave a concurrent
finding that even if the possession by the respondents was adverse
the appellant and his father had done acts of possession at
various intervals which were sufficient to interrupt both the continuity and the exclusiveness of possession by the respondents.
The Division Bench, however, did. not agree with the concurrent
finding on a re-appraisal of the evidence by it.