T.L. Viswanatha Iyer, J.

(1) This appeal is by defendants 3 to 6 in a suit for partition. Admittedly, the plaint A schedule properties belonged to one Pokken, who had two sons, Kumaran and Kunhikannan (3rd defendant) and three daughters, Devu, Ammalu and Kalyani, who are defendants 1 and 2, and the plaintiff, respectively. Defendants 4 to 6 are the children of the 3rd defendant. Pokken died on March 12, 1968; his wife Chirutha on May 30, 1977, and son Kumaran, on September 4, 1974 (vide Ext. B27). Pokken had two sisters Matha and Kalyani, of whom Kalyani had two sons, Kunhikannan and Gopalan.

(2) The plaintiff filed the suit for partition and separate possession of her 1/3 share in the two items of plaint A schedule properties, and the B schedule movables, with the allegation that Pokken had executed a registered will on August 31, 1953 bequeathing these properties to his three daughters, to be held by them in equal shares, and that therefore she was entitled to a 1/3 share therein. By the Will (a registration copy of which is Ext. A1) Pokken bequeathed the eight items of properties specifically mentioned, to his sons (Kumaran and the 3rd defendant), sister Matha, and nephews Kunhikannan and Gopalan. In particular, item No. 7 of the will, which was Pokkens share in a joint family property, was bequeathed to his sister Matha, and nephews, Kunhikannan and Gopalan in moieties. All the other assets of Pokken, not named in the Will, (which include the plaint schedule properties) were bequeathed to the three daughters, plaintiff and defendants I and 2, subject to a life interest in favour of the wife Chirutha, to be in possession, and to enjoy the usufructs during her life time, without any right to deal with the same. Chirutha died on May 30, 1977. The plaintiff thereafter became entitled to possession of 1/3 share in the properties, and she claimed partition and separate possession of this share in the suit.

(3) Defendants 1 and 2, the other two daughters of Pokken, support the plaintiff and claim 1/3 share each in the plaint schedule properties. On the other hand, defendants 3 to 6, namely, Kunhikannan, (a son of Pokkeh) and his children, oppose the plaintiffs claim, with the contention that they are entitled to 3/6 share in the properties. They admit that the plaint A schedule properties belonged to Pokken, and that Pokken had executed the Will Ext. A1; but they contend that the Will had been revoked by Pokken, by the compromise petition Ext. X1 (copy Ext. B1) in the suit O.S.No. 1020 of 1955 on the file of the Munsiffs Court, Badagara filed by him against his son, Kumaran. The Will Ext. A1 was therefore inoperative. Pokken died intestate, and the plaint A schedule properties devolved on his wife, two sons and three daughters in equal shares. The third defendant thus had 1/6 share in the properties on the death of Pokken. Chirutha, the wife of Pokken, assigned her 1/6 share in the properties to one Nanu on March 31, 1973 and he, in turn, assigned his rights to the third defendant. Kumaran, to whom 1/6 right in the properties belonged, bequeathed his share to defendants 4 to 6 by his will executed on February 23, 1972. Defendants 3 to 6 thus became entitled to 3/6 share in the plaint A schedule properties. The children of Pokken had executed a nischayapathram in the year 1961, by which it was provided that the properties belonging to them, were to be held and enjoyed in common. After Pokkens death, his children divided his properties, and other belonging to them, by a deed of partition dated November 20, 1971. The plaint A schedule properties and one Chorodankandy paramba were however left undivided and kept in common for Chirutha to enjoy the income therefrom during her life time. Plaintiff and defendants 1 and 2 were parties to these documents. They had agreed and accepted that the plaint A schedule properties belonged in common to all the heirs of Pokken. They were therefore estopped from contending otherwise in the suit.

(4) After defendants 3 to 6 filed their written statement, the plaint was amended to raise a contention that the plea of these defendants that the will had been revoked by the compromise petition in O.S.No. 1020 of 1955 was barred by res judicata, by the decision in A.S.No. 152 of 1972 on the file of the Subordinate Judge of Badagara. We may briefly refer here to the basis of this contention before proceeding to discuss the various points arising for decision in the appeal.

(5) There was a suit O.S.No. 670 of 1957 on the file of the Munsiff of Badagara for partition of the assets of the family on which Pokken was a member. Pokken was the first defendant in the suit, and his nephews, Kunhikannan and Gopalan, children of Kalyani, were defendants 6 and 7. By the final decree in the suit, plots B and C delineated in the Commissioners plan Ext.C1 were allotted jointly to Pokken, and his nephews, Kunhikannan and Gopalan. After Pokkens death, petition for execution, namely E.P.No. 131 of 1971 was filed by Kunhikannan and Gopalan, and the wife and children of Pokken, for delivery of these plots to them. While this petition was pending, Pokkens sister Matha, who was the third defendant in the suit, died, and her children were impleaded as respondents 17 to 21 in the Execution Petition. The property involved in the Execution Petition was item No. 7 in Ext.A1 will, and had been bequeathed by Pokken to his sister Matha, and nephews, Kunhikannan and Gopalan, in moieties. If the will Ext. A1 stood unrevoked, and operated on Pokkens death, Matha will become entitled to half of the property, the other half going to Kunhikannan and Gopalan, without any share devolving on Pokkens wife and children. Mathas children therefore resisted the claim for delivery of the property, made inter alia by the wife and children of Pokken. The petitioners in the Execution Petition supported their claim with the contention that the Will had been revoked by Pokken by the compromise petition in O.S.No. 1020 of 1955.

(6) The Execution Court upheld the plea of the petitioners and held that there was a revocation of the will. The signatures of Kumaran, and of Pokkens Advocate Sri. N.V. Lakshminarayana Iyer, in the compromise petition were held to constitute attestation of the revocation of the Will, and hence it stood revoked in the manner provided in Section 70 of the Indian Succession Act. Since the Will had been validly revoked, the wife and children of Pokken were entitled to claim delivery of the property as against Matha, the legatee under the Will.

(7) There was an appeal taken by respondents 17 to 21 in the Execution Petition before the Sub Court, Badagara as A.S.No. 152 of 1972. While the appeal was pending, Kumaran died, and in his place, his wife Matha was impleaded as his legal representative. Defendants 4 to 6 herein, who were legatees under the Will of Kumaran, were not however made parties to the said appeal. The Appellate Court reversed the decision of the Execution Court and held that there was no proper revocation of the Will Ext.A1 as prescribed in Section 70 of the Indian Succession Act and therefore the wife and children of Pokken were not entitled to claim delivery of the property. It was also held that, in any case, the revocation was only so far as item No. 1 of the Will EXt.A1 was concerned (i.e. the property bequeathed to Kumaran and forming the subject matter of O.S.No. 1020 of 1955. Copy of the judgment in A.S.No. 152 of 1972 is Ext. A3 and of the decree Ext. A2. It was this decision that was set up by the plaintiff as constituting res judicata.

(8) The trial Court accepted the plea of res judicata and held that defendants 3 to 6 were barred, by the decision Ext. A3, from contending that the Will Ext.A1 had been revoked by Pokken. In that view, the trial Court decreed the suit as prayed for, for partition and separate possession of the plaintiffs 1/3 share in the plaint A schedule properties. So far as the movables described in the B schedule were concerned, their existence was not proved by the plaintiff, and therefore, no relief was granted in relation to them. This part of the decree has become final. Therefore, reference in the further part of this judgment to "the plaint properties" will mean the plaint A schedule properties.

(9) Counsel for the appellants Sri. T.S. Venkiteswara Iyer has raised the following points in support of the appeal : a) The Will Ext.A1 has not been properly proved. None of the attestors has been examined and therefore it is totally inadmissible in evidence. b) What has been produced is only a registration copy of the Will and hence no reliance can be placed on the Will. c) The decision in Exts. A2 and A3 does not operate as res judicata. d) The deed of partition entered into between the parties on November 20, 1971 amounts to a family arrangement. It is one executed by all the parties and is binding on them. The claim for partition made by the plaintiff ignoring the same is unsustainable in law.

(10) Pokken was a person who appears to have possessed considerable properties. He executed a will on August 31, 1953. It was a registered will, and a registration copy thereof is Ext. A1. He dealt specifically with eight items of properties, of which he bequeathed items 1 and 2 to his_son Kumaran, items 4, 5 and 6 to his son, the third defendant, items 6 and 7 in moieties to his sister Matha, and his nephews, Kunhikannan and Gopalan, and item No. 8 to Kunhikannan and Gopalan. The rest of the assets, movable and immovable, belonging to him, and not specifically dealt with, were bequeathed to his wife, and the three daughters, namely plaintiff and defendants 1 and 2. However, the wife had no right of alienation, but only a right of enjoyment of the properties during her life time.

(11) It must be noted here that item No. 1 bequeathed to Kumaran was an item which had previously been sold to him by Pokken. But Pokken stated in Ext. A1 that despite the sale, which was alleged to be without consideration, he continued to be in possession of the property and was entitled to deal with the same. Item No. 6 which was bequeathed to Matha and the nephews, Kunhikannan and Gopalan, was a property called Chorodankandy paramba. Item No. 7, which had also been bequeathed to them, was an item which belonged to Pokkens family, and it was his share in the said property that formed the subject matter of the bequest.

(12) The inclusion in Ext. A1 Will of item No. 1, which had already been sold to Kumaran, led to a suit O.S.No. 1020 of 1955 in the Munsiffs Court, Badagara between the father and son, namely Pokken and Kumaran. That suit was compromised. Ext. X1 (of which a copy is Ext. B1) is the compromise petition which was signed by Pokken, Kumaran and this respective counsel. Thereunder, the property was given to Kumaran subject to Pokkens right to be in possession, and to take the usufructs, during his life time. Kumaran was to get absolute rights only after Pokkens death. Pokken had no right to deal with the property during his life time. It was stipulated that this item was not liable to be divided among Pokkens heirs on his death, but that its value will be taken into account in reckoning Kumarans share of the estate of Pokken, who will get only the residue after deducting this value. The compromise was recorded and the suit was decreed in terms of the compromise on May 29, 1956. A copy of the decree is Ext.B2.

(13) The compromise petition contained the following recital which is of relevance to this case : (Vernacular matter omitted.) It is common case that the reference is to Ext. A1 Will and that "the plaintiff" referred to is Pokken.

(14) Pokken thereafter sold Chorodankandy paramba, which is item No. 6 in Ext.A1, to his children by a deed of sale Ext.A5 dated February 12, 1960. This was followed by a gift Ext.B3 dated August 18, 1960 by Pokken to plaintiff and defendants 1 to 3, of properties which included items 3 and 4 mentioned in Ext. A1, and certain others not specifically dealt with therein. Ext.B3 refers to the compromise petition Ext.X1 and the decree Ext. B2, and explains the exclusion of Kumaran from the gift with reference to the property given to him under the compromise.

(15) The children of Pokken, namely plaintiff, defendants 1 to 3 and Kumaran executed a nischayapathram Ext. B4 on March 3, 1961. This comprised the property given to Kumaran by Ext.X1 as well as the properties covered by Exts.A5 and B3, and others. It was stated that the parties became entitled to some of the items under gift or purchase, and that some others had been purchased by Pokken in their names with his funds. It was stated that all these items belonged to them jointly - (Vernacular matter omitted.) The nischayapathram was intended to provide for proper management of the properties. The income was to be divided into six shares of which plaintiff and defendants 1 to 3 were allotted one share each, with the residual two shares to Kumaran in as much as some of the items stood exclusively in his name, and he was also putting forth extra effort on the properties. The parties were to keep possession jointly and share the income : (Vernacular matter omitted.)

(16) Pokken died on March 12, 1968. The plaint schedule properties had not been dealt with specifically in any of the documents mentioned earlier. They formed part of the residuary legacy in Ext. A1. The five children of Pokken entered into a partition karar Ext. A5 on November 20, 1971 by which they divided the properties left behind by Pokken, and those belonging to them in six equal shares, allotting two shares to Kumaran and one share each to the other children. The properties dealt with in the nischayapathram Ext.B4 as well as others left behind by Pokken formed the subject matter of the partition. The plaint schedule properties and Chorodankandy paramba were left undivided, to be kept in common. Chirutha, the wife of Pokken, was put in possession of these properties to enjoy the income therefrom during her life time. Ext. B5 also contains recitals similar to those in Ext. B4 about the joint rights of the parties over the properties. (Vernacular matter omitted.) The rest of the properties were divided. Ext.B5 was thus executed as if Pokken had died intestate and that his wife and children had equal right in the properties left behind by him.

(17) On Pokkens death, all his legal heirs, namely the wife and children, filed an application Ext.B28 in the Munsiffs Court, Badagara for the issue of a succession certificate under Section 372 of the Indian Succession Act. The certificate was sought in relation to a fixed deposit in the Nedungadi Bank, and the amount in deposit in a Post Office Savings Bank Account. Inter alia, it was stated in the petition that the applicants were the sole legal heirs of deceased Pokken and that he had no other heirs. Pokken had not made any arrangements regarding his assets. Succession certificate was therefore sought in favour of the two sons for receiving the amounts on behalf of all the heirs. The petition was allowed by the order Ext.B21 and succession certificate issued. It is pertinent to note that the petition was filed as if Pokken had died intestate. If Ext.A1 were treated as operative, the position would have been that these amounts formed part of the residuary legacy over which the sons, Kumaran and the third defendant, had no rights.

(18) A part of the plaint properties was acquired for purpose of the National Highway. There was a reference L.A.R.No. 15 of 1974 to the Sub Court, Badagara as to who was entitled to the compensation Chirutha, her daughter Devu (the first defendant) and Kunhikannan, the third defendant, filed a joint statement Ext. B10 that as per the deed of partition Ext.B5, the entire compensation was liable to be paid to Chirutha. The other two daughters namely Ammalu and Kalyani filed a statement that they were entitled to get 2/3 share of the compensation by virtue of the decision Ext. A3 in A.S.No. 152 of 1972 mentioned earlier. However, the Sub Court awarded the entire compensation due, to Chirutha, by the decree Ext. B 12.

(19) Kumaran died on September 4, 1974. He had executed a Will Ext.B9 on February 23, 1972 bequeathing the properties allotted to him under the deed of partition Ext.B5 to various persons. Inter alia he had bequeathed portions to his sisters, and brother, the third defendant. He bequeathed his share in the plaint properties to his nephews defendants 4 to 6.

(20) Ammalu and Kalyani, namely plaintiff and the second defendant, sold their 2/6 share in the Chorodankandy paramba, kept in common, to one Kirshna Panicker by Ext. B23, dated September 12, 1972. Similarly Kumaran and defendants 1 and 3 in their turn also sold their share in the very same property to Krishna Panicker by the deed of sale Ext. B24 dated September 14, 1972. Chirutha, in her turn, sold her 1/6 share in the plaint schedule properties to one Nanu by Ext. B7 dated January 31, 1973. Nanu sold these rights to the third defendant by Ext. B8 dated February 5, 1975. All this was done accepting and affirming the deed of partition Ext.B5 and tracing the title to the partition.

(21) The third defendant in his turn sold his half right in the property bequeathed to him and Devu as per Kumarans Will Ext.B9 to Ammalu and Kalyani. Ammalu and Kalyani in their turn sold their rights over another property obtained under Kumarans Will to the third defendant under Ext.B15. There was a still later transaction by Ext.B25 by which Ammalu sold her share in an item of property obtained under the deed of partition Ext. B5 to a stranger.

(22) All these dealings between the 1972 and 1977 were entered into on the basis of the title derived under the deed of partition Ext. B5, or Kumarans Will Ext.B9 which itself traces his title to the properties to Ext. B5. The parties have thus accepted and acted upon the deed of partition Ext.B5 and dealt with the properties in the light of the title derived thereunder.

(23) When Kumaran died executing the Will Ext.B9, his mother Chirutha filed a suit O.S.No. 223 of 1974 in the Munsiffs Court, Badagara for her share in the properties left behind by Kumaran. Her contention was that the Will Ext. B9 executed by Kumaran was not a genuine document and that Kumaran must be deemed to have died intestate. The matter was settled between the parties and the plaint was dismissed. Exts. A7 and A9 are the copies of the suit and of the decree.

(24) When Chirutha executed Ext. B7 purporting to sell her 1/6 share to Nanu, her daughter Devu, the first defendant herein, filed suit O.S.No. 81 of 1975 in the Munsiffs Court, Badagara contending that Chirutha had no right to deal with her share in as much as her rights under the deed of partition Ext.B5 were confined to possession and enjoyment of the income from the properties during her life time without any right of alienation. A copy of the plaint is Ext.B13 (Ext.A8). The importance of this suit is as evidence of an act of the first defendant affirming the title under Ext. B5, and that the parties were holding the plaint schedule properties jointly as per Ext.B5. The fact is that the first defendant accepted and acted upon Ext.B5 as true and valid and that the rights of all the parties flowed therefrom.

(25) The deed of partition Ext.B5 was the subject matter of proceedings under Section 45-A of the Kerala Stamp Act, 1959. The District Collector passed order declaring that the estate had been undervalued. He directed the parties thereto to make payment of further amounts by way of stamp duty. The deficient stamp duty was paid. The documents relating to these proceedings are Exts. B18, B19 and B20.

(26) It is evident from a perusal of the compromise petition Ext.X1 that Pokken had intended to revoke the will Ext.A1 in its entirety. Apart from the recital that the will dated August 31, 1953 has been revoked, any doubts regarding Pokkens intentions are set at rest by the other recitals in Ext.X1. It is provided that the property comprised in Ext.X1 was not liable for diversion among his heirs after his demise. The next recital is telling. It is stated that in ascertaining the share that Kumaran was to get on Pokkens death, the value of the kanam kushikanam and improvement right over this property was also to be taken into account, and Kumaran was to get only that much necessary to make up the deficiency in the share. In other words, Pokken had postulated a devolution of his properties as on intestacy. These recitals in Ext.X1 are inconsistent with the continued existence and operation of the will EXt.A1. Pokken had as per the will conferred legacies on his two sons Kumaran and the third defendant as also on his sister, and nephews, besides a residuary legacy of all the remaining unremunerated items on his daughters, namely, the plaintiff and defendants 1 and 2. If the will were to operate, the position was that all the residuary assets of Pokken will devolve on his daughters and only the items specified in Ext.A1 will devolve on Kumaran. Nevertheless Ext.Xl proceeds as if there could be a devolution of properties on Kumaran on Pokkens death, which is possible only if the will EXt.A1 stand revoked in its entirety and was not operative.

(27) The parties also understood it only in this manner as is evident from their subsequent conduct. The deed of gift Ext.B3 takes in some of the items included in Ext.A1 (namely items 3 and 4), and deals with them and others. Ext. B3 is followed by the nischayapathram Ext.B4, (which was executed at a time when Pokken was alive) between his two sons and three daughters. Ext.B4 deals with items 1, 3, 4 and 6 of Ext. A 1 as also certain items comprised in Ext.B3, and others. It is recited that all these items had been obtained by the executant of Ext.B4 partly by gift and partly by purchase with funds provided by Pokken. These properties are said to belong to, and held jointly by, the expectants, namely the children of Pokken. The deed provides for management of the properties by Kumaran, and division of the profits into six, out of which two shares go to Kumaran, as already mentioned.

(28) The recitals in O.P.No. 6 of 1968 of Munsiffs Court, Badagara filed by the wife and children of Pokken for grant of succession certificate are very significant. It is stated that Pokken had made no arrangements regarding the realisation of the debts, that the applicants were his heirs and were therefore entitled to issue of succession certificate. These recitals are significant in that if Ext.A1 will was operative and governed the succession to the estate of Pokken, the debts in question would have devolved only on the three daughters, namely, the plaintiff and defendants 1 and 2. The wife and sons would have had no right over the same. The parties therefore obviously proceeded on the basis, that the debts devolved as on intestacy.

(29) The deed of partition Ext.B5 also proceeds on the same footing of intestacy. It affirms the recitals in Exts.B3 and B4 and proceeds to make division of the properties as if Pokken had died intestate.

(30) The properties allotted as per this partition were subsequently dealt with by the various allottees on the basis of Ext.B5, as narrated herein earlier.

(31) The lower Court has proceeded to decree the suit on the ground that in the execution proceedings in O.S.No.670 of 1957, the Appellate Court had by the judgment Ext.A3 held that there was no revocation of the will in the manner prescribed by Section 70 of the Indian Succession Act and that in any event revocation could be deemed to be only in relation to the item forming the subject matter of the suit O.S.No. 1020 of 1955 in the Munsiffs Court, Badagara and not of the entire will. The third defendant, and Matha, the wife of Kumaran, were parties to the execution proceedings. They substantially represented the estate of Kumaran, and therefore Ext.A3 was binding on defendants 4 to 6 as well, though they were not to nomine parties to the appeal. Since the question of revocation of the will was thus decided in proceedings to which the third defendant was a party, it operated as res judicata against any contention that the will had not been revoked.

(32) Counsel for the appellant challenges this finding of the lower Court. He further states that the Will Ext.A1 has not been properly proved, by examining an attestor, as required by Section 68 of the Evidence Act. One of the attestors was admittedly alive. Section 68 is mandatory, and. even if there is no dispute in the written statement about its validity or genuineness, formal proof of the will by examining one of the attestors is necessary before it could be acted upon. Kamalakshy v. Madhavi Amma, 1980 Ker LT 493 is cited in support of this contention. it is also stated, placing reliance on the decision in Girja Datt v. Gangotri Datt, AIR 1955 SC 346 [LQ/SC/1955/4] , that it cannot be presumed, from the mere signatures of two persons in the will, that they had appended their signatures as attesting witnesses. Section 68 should be complied with in order that these two persons might be treated as attesting witnesses. Counsel stresses further that the original will is not forthcoming, but only a registration copy Ext.A1. Since Pokken had revoked EXt.A1, the original must have been destroyed by him, and was not therefore available for production. Counsel wants the Court to presume in the circumstances, that the original has been destroyed with the intention of revoking it.

(33) The plaintiff had rested her case in the plaint on her rights under the will, a registration copy of which was produced along with the plaint. Defendants 1 and 2 supported the plaintiff. The appellants namely defendants 3 to 6 who had filed an original written statement and an additional written statement, had not chosen to dispute the validity or the genuineness of the Will. There was no contention raised that the will was not genuine or that it had not been properly executed or attested. The testamentary capacity of Pokken was also not in dispute. The only contention raised was that the will had been revoked, and that Pokken had died intestate. There was therefore no issue raised about the validity or the genuineness of the Will.

(34) Order 8 Rule 5 of the C.P.C. provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the times the parties are deemed to have admitted by their pleadings. In this case, in the absence of any denial in the written statement, the genuineness and the validity of the will Ext.A1 must be deemed to have been admitted by the law of pleadings, namely Order 8 Rule 5, and therefore that fact was not required to be proved at the trial. Section 68 states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. The proviso to the Section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to Wills, and that it does not make an exception in the case of registered Wills, does not lead to any inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a Will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, S.68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding S.68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. Phipson on Evidence 12th Edition (1976) explains the rationale behind examining an attesting witness as that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, "an agreement which may be waived for the purposes of dispensing with proof at the trial". (paragraph 1751). In paragraph 1757, the learned author points out that proof of execution of documents required by law to be attested is dispensed with (although the attesting witness may be alive and in Court) "when the execution has been admitted for purposes of trial". Order 8 Rule 5, C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will.

(35) This view of ours is supported by the decision in Hava v. Lokumal Sobhraj, AIR 1944 Sindh 61.

(36) In Kamalakshy v. Madhavi Amma, 1980 Ker LT 493, a contention had been raised in the written statement that the will relied on by the plaintiff was not valid. But the plaintiff did not choose to examine any attestor, because of the vagueness of the plea. This Court remanded the matter to the trial Court for consideration of this question. It is true that in the course of the judgment Bhaskaran, J. made some observations that compliance with Section 68 was called for even in the absence of a denial in the written statement. These observations were not required for the decision of the case and were obiter. In any case, we are not inclined to accept the observations as correct, in the light of what we have stated earlier.

(37) The above contention of counsel for the appellant is therefore overruled.

(38) We do not feel it necessary to go into the questions whether the Court should presume that the Will has been revoked from the fact of non production of the original Will; or, whether the decision in Exts. A2 and A3 constitutes res judicata so far as the question of revocation of the Will Ext. A1 is concerned. This is because of the view that we are taking about Ext. B5 and its enforceability. We are of the opinion that Ext.B5 is liable to be accepted and enforced as a family arrangement binding on the plaintiff and defendants 1 and 2, and that the plaintiff cannot claim any partition in derogation of the recitals in, and the arrangements made by, Ext.B5.

(39) What then is a family arrangement A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agree may be implied from a long course of dealings, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. (Halsburys Laws of England, Fourth Edition, Volume 18, Page 135, paragraph 301) Family arrangements are respected, and acted upon, by Courts. Courts are reluctant to upset such arrangements validly entered into by the parties. As observed by Halsbury Volume 18 at page 137 paragraph 304 :

"Family arrangements are governed by principles which are not applicable to dealings between strangers. When deciding the rights of parties under a family arrangement or a claim to upset such an arrangement, the Court considers what in the broadest view of the matter is most in the interest of the family, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements."

Family arrangements are generally entered into for the purpose of the well being, and harmony, in the family. Thereby disputes are avoided, the honour of the family safeguarded and obligations morally binding on the members of a family are provided for. The factual existence of a dispute is not a sine qua non for the validity of a family arrangement or to justify its existence in view of the beneficial nature and effect of such arrangements. It was held in Pokhar Singh v. Mt. Dulari Kunwar, AIR 1930 Allahabad 687 following the decision in Williams v. Williams, (1867) 2 Ch App 294 that "for a family arrangement to be good and binding, it is not necessary that there should be a family dispute which had to be settled or composed". The fact that by their agreement, the parties have avoided the necessity for, or possibility of legal proceedings, is sufficient consideration to support it. Woodroffe and Ameer All in their Law of Evidence 13th Edition, Volume 3 at page 2896 summarise the law as follows :

"28. Family arrangements- Estoppel by conduct may arise in the case of family arrangements, the decisions as to which extend not merely to cases in which arrangements are made between members of a family for the preservation of its peace but also to cases in which arrangements are made between them for the preservation of its property .............. Where family arrangements have been fairly entered into, without concealment or imposition on either side, with no suppression of what is true, or suggestion of what is false, then although the parties may have greatly misunderstood their situation, and mistaken their rights, a Court of Equity will not disturb the quiet, which is the consequence of that agreement; but when the transaction has been unfair, and founded upon falsehood and misrepresentation, a Court of equity would have a very great difficulty in permitting such a contract to bind the parties. When a family arrangement has been entered into, or acquiesced in by all the persons interested in the family property, and has been carried into effect, then none of the persons who consented thereto may thereafter be heard to repudiate that arrangement, or to set up that it is not binding in law... A family arrangement stands on a different footing from an ordinary contract. A settlement of doubtful claims, or rather what the parties believed to be doubtful claims without the worry and expense of litigation might itself be a sufficient "consideration" for such an arrangement. The fact that there was no other consideration to support the arrangement, or that it transferred the property to a person without any right, is not, therefore, a sufficient ground for setting aside a family arrangement. The matter is again dealt with by Sarkar in his Law of Evidence 13th Edition page 1128 : "A family arrangement has been defined as an arrangement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigating or by saving its honour."

Avoidance of family disputes is only one of the many grounds which go to validate a family arrangement. Any arrangement which is for the benefit of the family generally or tends to the preservation of peace and security in the family is sufficient to make it a family arrangement, valid and binding on the members. When there is a family arrangement binding on the parties, it would operate as an estoppel by preventing the parties, after having taken advantage under the arrangement, from resiling from the same, or trying to revoke it. Recitals in the document incorporating the family arrangement are also equally binding. Spencer Bower in his book Estoppel by Representation, Third Edition, page 158, paragraph 159 states :

"Most cases of estoppel by convention are founded simply on the proposition that it is just that the parties to a transaction be precluded from denying what has been assumed between them as its essential factual basis." The learned author continues as follows in paragraph 163: "A question may always arise, wherever the plea of estoppel by convention is raised, whether the alleged assumption has indeed been adopted by the parties as the conventional basis of the transaction into which they have entered. If this is found to be the position, however, then neither party will be allowed, as against the other, to dispute the assumed state of facts in any proceeding, arising out of the transaction. For to dispute the foundation will be to disrupt the transaction itself. In the case of estoppel by deed, in particular, it is often so transparently clear as hardly to require argument that a recital of fact placed by the parties in the very forefront of the instrument into which they have entered must serve to estop both from averring to the contrary."

Even an agreement dividing family property, though entered into under a misapprehension of the legal rights of the parties, (provided the misapprehension was not induced by any party to the agreement) will be supported and sustained as a family arrangement. (See in this connection Halsburys Laws of England Fourth Edition, Volume 18, page 136, paragraph 303).

(40) The recitals in the document or arrangement are evidence as against the parties to the document. If it is a settlement deliberately made and parties have acted upon the document, the recitals on the faith of which the other parties have acted, induced on the strength of the facts, and the position adumbrated in the document, operate as an estoppel in favour of the parties (see Woodroffe and Ameer Ali : Law of Evidence 13th Edition Volume 3, page 2908). A party who takes under a document cannot disaffirm the other portions of the same document. He cannot be allowed to approbate and reprobate. The principle is that there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it conforming to all its provisions and renouncing every right inconsistent with it (Snells Principles of Equity 28th Edition page 495). The Privy Council had as early as in Rungama v. Atchama, (1846-51) 4 Moores Indian Appeals l at page 103 applied as a principle based on the rules of justice that "a party shall not at the same time, affirm and disaffirm the same transaction - affirm it as far as it is for his benefit, and disaffirm it as far as it is to his prejudice.". In Lakshmi Bai v. Ganpat Moroba, (1868-69) 5 Bom HCR 128, one Vasudev Viswanath, who had obtained property on partition of a Hindu undivided family, executed a will making inter alia a residuary bequest of his assets to his two sons and four grand-children, who were the sons of a deceased son Moroba. The residuary bequest was not to take effect until the death of his widow. The estate was divided in 1855 by arbitrators, the four sons of Moroba, who were then minors,, represented by their mother taking their share together. There was a suit in the year 1856 when the greater part of the movable property allotted to the grandchildren was partitioned. They however continued to enjoy the immovable property as a Hindu Undivided Family. A portion of the property was sold in 1866 with the mother of the minors acting as their guardian. The widow of one of these grand-children later brought a suit for partition claiming a 1/4 share of the allotment made as per the arbitration award in 1855. On the pleadings of the parties, the validity of Vasudevs Will itself was questioned on the ground that the testator had no right to dispose of the property by Will. The plaintiff however pointed out that the parties had by their subsequent acts and conduct acquiesced in the disposition of the property made by the testator. It was in this context the Court observed at page 138:

"Now upon these facts we are of opinion that there is evidence of a family arrangement to give effect to the Will which the Court ought to uphold. The defendants, if not bound by the reference to arbitration and the equity suit, have since they attained their majority, adopted and confirmed the act of their mother and guardian. In order to constitute a binding family arrangement it is not necessary that there should be any formal contract between the parties, and if sufficient motive for the arrangement is proved, the Court will not consider the quantum of consideration. Williams v. Williams, (1867) 2 Ch App 294. The fact that by their agreement the parties have avoided the necessity of legal proceedings, is a sufficient consideration to support it. Partridge v. Smith, (1863) 9 Jur NS 742, Naylor v. Wynch, (1824) 1 Sim and Sim, 555 (564) : 2 LJ Ch 132. From the time of the death of Vasudev Viswanath until the dispute between the present plaintiff and the defendants arose, the validity of the will does not appear to have been questioned. The Court must therefore, consider the Will as a valid one."

In Pullen v. Ready, (1558-1774) All ER (Reprint) 502, Lord Hardwicke L.C. dealt with the argument that the transaction entered into between parties pursuant to a will was under mistake observing :

"It has been said, chiefly by Mr. Pullens counsel, that they executed the articles under a mistake. There is nothing more mischievous than for this Court to decree a forfeiture after an agreement in which, if there is any mistake, it was the mistake of all the parties to the articles, and no one of them is more under an imposition than the others. This Court is so far from assisting to set up the forfeiture again that they would rather rejoice at the agreement, because it has absolutely tied up the hands of the Court from meddling in the question. If I was to decree the forfeiture now, it would be making all agreements vain and nugatory."

The same was the position in the decision reported in Stockley v. Stockley, (1803-13) All ER (Reprint) 543 rendered by Lord Eldon L.C.

"If a doubt is raised between persons as to their rights in family matters and they come to a reasonable agreement the Court will go a long way to carry it into execution even where the persons in question erroneously assume a knowledge of their rights and deal with the property accordingly and not on the principle of compromising doubts."

The entire matter has been dealt with by the Supreme Court in Kale v. Dy. Director of Consolidation, AIR 1976 SC 807 [LQ/SC/1976/20] . The Court said that even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement. 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 no title but under the arrangement the other party relinquishes all his claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the Courts will find no difficulty in giving effect to the same.

(41) Halsbury (4th Edition Volume 16, page 1059 paragraphs 1571 and 1572) deals with estoppels by deed as follows :

"Estoppel by deed is based on the principle that when a person has entered into a solemn engagement by deed under his hand and seal as to certain facts he will not be permitted to deny any matter which he has so asserted. It is a rule of evidence according to which certain evidence is taken to be of so high and conclusive a nature as to admit of no contradictory proof.".......... "A party is estopped from denying any specific facts contained in a recital in a deed to which he is a party, provided the recital is certain, precise and unambiguous."

(42) Ext. B5 has to be tested in the light of the above principles. It has to be noted that parties had proceeded on the basis that the Will Ext. A1 had not been acted upon, that it had been revoked and that the properties have to be dealt with as if they devolved on intestacy. Even if technically there was no revocation of the Will in accordance with Section 70 of the Indian Succession Act, parties proceeded only on the basis that the Will was no longer in force. They arranged their affairs accordingly and executed Ext. B5 in the first instance after Pokkens death. Obviously Ext. B5 was executed to maintain family peace and any possible disputes in future. It is recited in Ext. B5 itself that the arrangements had been entered into through the medium of arbitrators. (script in vernacular omitted.-Ed.) This is a bona fide settlement of family matters. Even if there was no live dispute as such between the parties, still the honour and peace of the family were saved, and litigation avoided, by entering into this arrangement. There is no case that Ext. B5 was not entered into voluntarily by plaintiff or defendants 1 and 2 or that it was not fair or equitable. On the other hand, the evidence of P.W.1, the plaintiffs husband is that himself and the husbands of defendants 1 and 2 had actively taken part in the mediation and it was as per their advice that the partition was effected. The subsequent documents executed by the various parties including plaintiff and defendants 1 and 2 affirm Ext. B 5 and trace their title to it so that it is clear that the parties had intended to act on Ext. B5 as a concluded arrangement between them, vesting rights in law. Rights had been conferred on the parties including plaintiff and defendants 1 and 2 on properties other than the plaint schedule properties by Ext. B5 and by Kumarans Will. As narrated in detail previously, parties have taken advantage of these allotments and dealt with those items. The plaintiff and defendants 1 and 2 have thus taken advantage of the dispositions under Exts. B5 and B9 and therefore, cannot be allowed to turn round and assert exclusive rights over the plaint properties in derogation of the recitals and dealings in Ext. B5.

(43) Ext. B5 is therefore liable to be upheld as a valid family arrangement, binding on the parties and not open to challenge. If this be the view taken on Ext. B5, the recitals therein are conclusive. The parties have recognised their joint rights over the properties including the plaint schedule properties. They have proceeded on the basis that these properties belong to them in co-ownership with a life interest for enjoyment on Chirutha. These recitals operate as an estoppel on the parties who have taken benefits thereunder and enjoyed the same. It is not open to them to treat these recitals as not binding, or to act in a manner derogative of the rights created thereby. The recitals about the joint ownership of the plaint schedule properties are binding on the plaintiff and defendants 1 and 2. It has also to be noted that until the present suit was filed there was not much of dispute about the validity of Ext. B5 or the arrangements made therein except the claim put forward in L.A.R. No. 15 of 1974. Even in the present suit there is no challenge to Ext. B5 or that the arrangements made therein are not in any manner binding on plaintiff or defendants 1 and 2. If so, their claim for share can only be in accordance with the shares as allotted in Ext. B5.

(44) Chirutha had a 1/6 share in the property which she sold to Nanu. Nanu sold his right to the third defendant. The third defendant by himself is entitled to 1/6 share. Kumarans 1/6 share was bequeathed by him to defendants 4 to 6 as per the Will Ext. B 9. Therefore defendants 3 to 6 have together become entitled to 3/6 share as claimed by them. The plaint schedule properties have therefore to be divided between the plaintiff and the defendants with 1/6 share each to the plaintiff, the first defendant, and the second defendant, and 3/6 share to defendants 3 to 6. The decree awarding 1/3 share to the plaintiff and the balance 2/3 to defendants 1 and 2 is not sustainable.

(45) In this view of the matter, regarding Ext. B5 and its binding nature, it is unnecessary to decide whether the Will Ext. A1 had been revoked in accordance with Section 70 of the Indian Succession Actor whether Ext. A3 constitutes res judicata. This is because even assuming that Ext. A1 will had not been revoked in accordance with law, the subsequent family arrangement as per Ext. B5 is binding on the parties and governs the division of the plaint schedule properties.

(46) The appeal is therefore, allowed. The decree passed by the lower Court is modified by decreeing that the plaintiff, the first defendant and the second defendant shall each be entitled to 1/6 share of the plaint A schedule properties and that the balance 3/6 share will belong to defendants 3 to 6. The directions in the decree regarding profits will stand. The parties shall bear their respective costs in this Court as well as in the Court below. Appeal allowed.