JUDGMENT

1. This is a Defendant's appeal from a decree confirming the possession of the Plaintiff over a 3 anna share in mauza Chingrod and certain sir and khudkasht lands situate therein.

2. It is common ground that Guhan, the deceased husband of the Defendant-Appellant, and Punau, the Plaintiff-Respondent, were brothers, born of different mothers, and held jointly an 3 anna share in mauza Chingrod with sir and klusdkasht lands in that share. In addition, they also joint owners of 50 acres of occupancy land in mauza Lafin Khurd.

Before Guhan's death, the land and certain house property at Lafin was partitioned by metes and bounds and was in the separate possession of Guhan and Punau. After his death, the village share owned by the two brothers in mauza Chingrod was actually partitioned and mutated separately in the names of the Appellant and Punau. That was on 24-1-1945.

3. According to the Respondent, on 4-5-1945, a document style 1 as family arrangement was signed by the Appellant, the Respondent, the Appellant's daughter Pilibai and her husband Rambhamosa as guardian of their minor son Gendram and by Maktula, the mother of Punau.

Under this document, 1-anna share together with proportionate sir and khudkasht land out of the 4-anna share which was in mauza, Chingrod in the possession of the Appellant in pursuance of the partition dated 24-1-1945 was purported to be given absolutely by her to Pilibai, while 25 acres of land and the house property at Lafin which had been already partitioned during the lifetime of Guhan was retained by her absolutely. The interest conveyed to Pilibai in the village share was also said to he absolute.

The partition deed further purported to provide that the remaining property i.e. the Appellant's 3-anna share in mauza Chingrod together with proportionate sir and khudkasht land was to pass absolutely and immediately to the Respondent. When the document was sought to be registered, the Appellant, objected to the registration on the ground that she was not a party to the document that her mukhtyar had used certain blank papers bearing her thumb impressions which were in his possession and that therefore she was not bound by that document. Overruling her objection the document was registered.

4. According to the Respondent, he entered into the possession of the property purported to have been allotted to him under the document, and that Pilibai also likewise entered into possession of the property allotted to her thereunder. He then stated that even though they had entered into possession of this property the Appellant, through her servants and with the help of her son-in-law began to remove the crops from the fields and thus threatened to disturb his possession.

He therefore commenced proceedings under Section 145, Code of Criminal Procedure. He added that in those proceedings the crops were attached under the orders of the Court and were eventually delivered to the Appellant. The Respondent's contention is that the document of 4-5-1945 is a family arrangement between him and the Appellant and is consequently binding upon her.

5. The Appellant's defence is that her husband Guhun, separated from the Respondent in the year 1942 and that thereupon the village share with, sir and khudkasht lands thereto and the land and house property at Lafin was completely partitioned during his lifetime. She further stated that the land at Lafin was separately recorded in the names of the two brothers and that her husband had actually applied for the mutation of his 4-anna share in mauza Chingrod but that due to the fact that he was ill he could not remain present in the Revenue Court on the date which was fixed for hearing and consequently it was dismissed.

She however asserted that despite this fact he was actually in separate possession of his share. She added that after the death of her husband she applied for the mutation of her share separately in her name but the revenue authorities recorded the entire 8-anna share jointly in her name and that of the Respondent. She further stated that she wanted her share to be separated from that of the Respondent and that with this aim in view she had it partitioned privately on 24-1-1045 on which date both she and the Respondent executed the partition deed Ex. P-1.

6. After the execution of this partition deed the Appellant applied for the mutation of the 4-anna share in Chingrod in her own name but in the meanwhile the Respondent, making use of her thumb impressions on certain blank papers in the possession of her mukhtyar, whom he had won over, apparently brought into existence the so called family arrangement Ex. P-5 on 4-5-1945. She denied execution of this deed of family arrangement and asserted that when it came to her notice during the mutation proceedings she executed a deed of cancellation dated 18-9-1945 on the advice of a lawyer.

She contended that the so-called family arrangement, Ex. P-5, is not operative against her as it was brought into existence through fraud, misrepresentation and coercion. She further added that she is an illiterate and 'pardanashin' villager and as such the document could not bind her unless the contents thereof were explained to her by someone else and that Ex. P-5 was not so explained to her by any one.

Lastly she contended that the document had not been registered as against her and was consequently inoperative. She stated that she has throughout been in possession of the property in suit and relied upon the orders passed in the proceedings under Section 145, Code of Criminal Procedure, for that purpose.

7. The Court below held that at the end of the year 1941 there was a severance of the joint status as between Guhan and the Respondent, that the lands at Lafin had been partitioned by metes and bounds during the lifetime of Guhan and that the rest of the property is not proved to have been partitioned by metes and bounds during the lifetime of Guhan, that after Guhan's death, his property passed into the possession of the Appellant, that partition was effected between the Appellant and the Respondent on 24-1-1945, that the Appellant voluntarily executed Ex. P-5, that the document was not obtained by the Respondent fraudulently as was alleged by the Appellant, that the document was immediately acted upon by the parties thereto, that the Appellant forcibly harvested and removed the crops from the sir and khudkasht lands pertaining to the 3-anna share allotted to the Respondent at the partition and that its value was Rs. 4,500/-.

Upon, these findings, the Court below passed a decree in favour of the Respondent for possession of the property claimed by him in the suit and for payment of Rs. 4,500/- as the value of the crop removed by the Appellant.

8. The finding of the Court below that there was a disruption of the joint family towards the end of the year 1941 is challengedby the Respondent. According to him, there is no evidence in support of the finding. No doubt the Court below has come to the conclusion that the witnesses examined on behalf of the Appellant prove this point but they have not been wholly believed by it. At the same time the learned Judge has observed: Yet, truth will have to be called from the testimony of these very witnesses in conformity with the other circumstances under which the transactions were brought about.

The learned Judge after discussing and believing the evidence to the contrary adduced on behalf of the Respondent has pointed out three important circumstances which indicate separation of Guhan from the Respondent.

The first of these circumstances is the actual, partition of the land at Lafin by metes and bounds. The second circumstance is the fact of Guhan's making an application Ex. D-21 for separate mutation of his share in the village Chingrod on the allegation that he had separated from the Respondent. The third circumstance is the actual partition of the family debt owed to one Gangusao towards the end of the year 1941.

In our opinion, these circumstances unquestionably point to the severance of the status of the members of the joint family. It may be that Guhan's application for mutation was dismissed but the fact that it does contain the recital of separation from his brother is sufficient to disclose his unequivocal intention to hold his interest in the property in severalty.

Therefore, even though only the Lafin property was actually partitioned by metes and bounds while the Chingrod property was not so partitioned during the lifetime of Guhan the conclusion must be that the two brothers had separated in status towards the end of the year 1941 and that they held their respective interests in the aforesaid village in severalty.

9. The most important question which arises for consideration is whether the family arrangement pleaded by the Respondent entitles him to the relief claimed by him. Upon our conclusion that the property inherited by the Appellant upon the death of her husband was the husband's separate property, it follows that the Respondent was not an heir-apparent to the estate and was not the person who was entitled to succeed to it after the death of the Appellant. The reason for this is that her daughter is alive and her daughter's son is alive. The 'spes successionis' which the Respondent has is very remote.

A claim which could be based upon it could almost be characterised as frivolous. An unfounded claim or defence can in certain circumstances sustain a family arrangement but such a claim must have been set up in good faith. Where the claim set up is apparently frivolous as it is in this case, existence of good faith must be negatived.

This would follow from the observations of Bowan, L.J. in Miles v. New Zealand Alford Estate Co.,1886 32 Ch 266. We have therefore to see what it is that the Respondent has alleged in the plaint in support of the plea of family arrangement. The relevant allegations are to be found in paras 5 and 6 of the plaint which run as follows:

That the Defendant being desirous of giving a portion of the property in her hands to her daughter Mst. Pilibai as her husband is poor made a proposal to this Plaintiff to allow her to make a gift of some portion of the property in her hands to her daughter which she could not do under the law having only a limited interest while the Plaintiff and his sons did not agree.

That a legal family arrangement was made between the Plaintiff and the Defendant on 4-5-1945 by which the Defendant was made an absolute owner of 1-anna share of mauza Chingrod with proportionate sir and khudkasht land and of 25 acres occupancy land of mauza Lafin khurd and the Plaintiff agreed to take the rest 3-anna share with proportionate sir and khudkasht land and in consideration of receiving the said property at present and then and there waived his rights in the said property which he and his sons might get in future over the said 1-anna share of mauza Chingrod and occupancy land of mauza Lafin khurd with houses and kothas in the said village. Lafinkhurd.

That the sons of the Plaintiff were also the parties to this arrangement and they also executed the said deed and waived all their rights, which they would have acquired in future on the same terms.

That thus a deed was written and the parties to the same executed the said document on 4-5-1945 embodying all the terms of the settlement. That by the said document the Defendant's daughter was given 1-anna share of mauza Chingrod with proportionate share of sir and khudkasht lands of which the Defendant became the absolute owner and the Plaintiff retained the rest of the property which is to go to her daughter after her death.

10. It will thus be clear that the Respondent has not stated that there wore any disputes or that any disputes were in contemplation which occasioned the family arrangement. On the other hand, the only object with which the aforesaid family arrangement was made was to enable the Appellant to transfer absolutely a portion of her property to her daughter and to retain absolutely some portion of the property of her husband which she had inherited. In effect, these allegations show that what was intended to be done under the guise of the deed of family arrangement was to effect a transfer. As has been pointed out in Sashi Kanta v. Promode Chandra, 1932 AIR(Cal) 600(v. 19) followed by Digby J. in Chunnilal v. Rukhmabai, 1943 AIR(Nag) 92( v. 30) . Bona fides is the essence of its (i.e., of the family arrangement) validity, and from this it follows that there must be either a dispute or at least an apprehension of a dispute, a situation of contest, which is avoided by a policy of giving and taking; or else, all transfers or surrenders will pass under the cloak of a family arrangement.

Thus, where the family arrangement was merely a cloak for the transfer, it could not be upheld.

11. What this document purports to do is to divide the estate of Guhan among the Appellant, her daughter and the Respondent, the latter getting the lion's share. What is the consideration for the transfer in favour of the Respondent? He is, so far as the Appellant is concerned, ready to forgo his reversionary claim, remote as it is, in respect of the Lafin property which she is supposed to take absolutely. Such a remote expectancy cannot be regarded as a consideration at law.

12. Even assuming that the transaction in question is not a transfer but a family arrangement, the English doctrine that mere expectancy or hope of acquisition of property may be the subject of a contract of arrangement that will have effect, in equity, as creating actual interests in the property, if and when the expected acquisition occurs, cannot be applied in India. The reason for this is that Section 6, Transfer of Property Act prohibits any dealings with mere expectancy.

There is no such express prohibition against such dealings under the English law. Therefore, without going into the question whether the Appellant was no party at all to the document or whether it was executed under any of the circumstances set out by her in her written statement we would hold that the family arrangement is not binding upon her.

13. On behalf of the Respondent strenuous attempt was made to show that the real occasion for the execution of the document Ex. P-5 was the possibility which most of the parties to the document had in view of family squabbles resulting from the desire of the Appellant to give her husband's property to her daughter. There is no reference to this matter in the plaint and therefore we are precluded from considering it.

The plaint refers to Ex. P-5 which does contain some recital bearing on the point. But Ex. P-5 is not a pleading nor can it be treated as a part of the pleadings. Reference was made in this connection to the decision of their Lordships in Knut Knutson v. Attorney-General, 1931 AIR(PC) 51( v. 18) in support of the proposition that where a document is referred to in the pleadings the contents thereof can also be regarded as part of the pleadings.

In that case what their Lordships have laid down is that where the statement of claim does not contain any allegation as to possession, there is no scope for entering into the matter. It was argued before their Lordships that a certain proclamation was referred to in the plaint and that this document did say something about possession. Regarding that argument their Lordships observed: And, even if the reference to the proclamation was enough to bring into the statement of claim the whole of the provisions of the proclamation, those provisions themselves did not go beyond a vesting of the land in the Custodian and a direction that he shall sell provisions which did not involve any vesting in him of possession or any taking by him of possession....

It will be clear that their Lordships did not lay down any law that the proclamation could be read as a part of the pleading and they dealt with the argument advanced before them merely on the assumption that the deficiency in the pleadings could be made good by reference to the document mentioned in the pleadings. Apart from that, the case before their Lordships is from Nigeria and we do not know what, the law relating to pleadings is in that country.

The Code of Civil Procedure which is the law on the subject in India is very strict, in the matter of pleadings. As their Lordships have said time and again no evidence can be looked into in support of a fact which is not pleaded expressly or by necessary implication. In this case there is neither express pleading nor pleading by necessary Implication as to the existence of an apprehension regarding the possibility of a dispute in future with respect to the claim of the parties to the document.

On the other hand, the pleading is expressly limited to say that there was one object only for entering into the family arrangement and that was to enlarge the estate of the Appellant and nothing else. The claim which the Respondent has brought is not tenable in law.

14. We, therefore, reverse the decree of the Court below and dismiss the Respondent's suit with costs in both Courts.

Final Result : Dismissed