family settlement is binding on the members of the
family even if one of the parties have not subscribed
his signature to the deed. But there should be
clinching evidence to show that the party who is not a
signatory to the deed has acquiesced in the settlement
by his subsequent conduct.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.CHITAMBARESH
&
MR.JUSTICE K.HARILAL
30TH DAY OF SEPTEMBER 2016
AS.No. 86 of 2001
SOSAMMA OOMMAN,
Vs
ANNAMMA SIMON,
The brother sets up a 'family settlement' in a
bid to coerce his siblings to agree for property in
lieu of that settled on them by their father.
2. One Oommen Simon died on 7.8.1986 leaving
behind his widow, one son and six daughters as his
legal heirs who are all parties to O.S.No.79/1989 which
is taken as the lead suit. The son is the plaintiff
and the widow and daughters are the defendants in the
suit which is one for partition and for a direction to
execute a deed of conveyance. Such deed is sought to
be executed in furtherance of Ext.A1 agreement dated
16.9.1986 conceding to re-partition the property
earlier owned by Oommen Simon. The parties are referred
to as per their rank in O.S.No.79/1989 which was
disposed of along with O.S.Nos.67/1991, 68/1991 and
98/1991 and evidence was recorded in common. Defendant
No.7 filed O.S.No.67/1991 for declaration of title and
recovery of possession and O.S.No.68/1991 for partition
of property. Defendant No.6 filed O.S.No.98/1991 for
declaration of title and recovery of possession of
property and all the suits were disposed of by the
common judgment impugned. The court below has dismissed
O.S.No.79/1989 and decreed O.S.Nos.67/1991 and 98/1991
declaring the title and granting recovery of
possession. A preliminary decree for partition has
also been passed in O.S.No.68/1991 granting 1/6 and
2/21 shares over item No.1 and items Nos.2 and 3 of the
plaint schedule property. The plaintiff has come up in
appeals and the cardinal issue to be considered in the
case is as to whether Ext.A1 agreement could be
construed as a 'family settlement'.
3. We heard Mr.S.V.Balakrishna Iyer, Senior
Advocate on behalf of the plaintiff/appellant and
Mr.K.P.Satheesan, Senior Advocate on behalf of the
defendants/respondents.
4. It is in evidence that Oommen Simon had
executed Ext.B8 settlement deed in favour of the
defendant No.7 and Ext.B13 settlement deed in favour of
the defendant No.6 on 14.5.1985. Oommen Simon had also
executed Ext.B11 settlement deed on the same date in
favour of defendants 2 to 7 who are his daughters
excluding his wife and son. It transpires that Oommen
Simon had even earlier executed settlement deeds
(Document Nos.2859/1984, 2861/1984 & 2870/1984) in
favour of defendants 3, 4 and 5. This is in addition to
a settlement deed (Document No.2871/1984) in favour of
the plaintiff and his wife and a Will (Document
No.III/37/1984) which are not produced. All the above
documents have been registered in the office of the Sub
Registrar, Adoor within whose jurisdiction Oommen Simon
allegedly owned 5 cents of land. Nobody has impeached
the settlement deeds hitherto and no evidence has been
let in to show that Oommen Simon did not own property
at Adoor to enable registration. There is also no plea
that the settlement deeds have not been acted upon or
that the mutation have not been effected in the revenue
records pursuant thereto.
5. It is admitted that defendant No.7 is not
a signatory to Ext.A1 agreement and it remains to be
adjudged as to how the same would affect her rights
prejudicially. The agreement opens by stating that the
property requires to be re-partitioned and nothing at
all is mentioned about the execution of the settlement
deeds and Will referred to earlier. It is also stated
therein that the plaintiff deserves to get 84 cents
(item No.3 of the plaint schedule property in
O.S.No.79/1989) towards his share. The compensation for
the acquisition of 1.67 acres (item No.2 of the plaint
schedule property in O.S.No.79/1989) is to be divided
into eight equal shares for the mother and 7 children.
The agreement in addition states that the property of
extent 3.18 acres and 1 acre deserves to be allotted to
defendant Nos.2 to 7 in equal shares to the exclusion
of the plaintiff. There is another clause in the
agreement which emphasises the need to pay maintenance
to the first defendant apart from her share of the land
acquisition compensation. The necessity to solve the
financial problem of the third defendant who is not
affluent can also be deciphered from a reading of the
agreement. The agreement concludes by stating that a
registered deed of conveyance has to be executed by the
parties with due deference to the terms of Ext.A1
agreement afore-stated.
6. The following are the guiding factors to
decide as to whether Ext.A1 agreement is a family
settlement or not as held in Kale and other v. Deputy
Director of Consolidation [AIR 1976 SC 807]:
(1) The family settlement must be a bona
fide one so as to resolve family
disputes and rival claims by a fair
and equitable division or allotment of
properties between the various members
or the family;
(2) The said settlement must be voluntary
and should not be induced by fraud,
coercion or undue influence;
(3) The family arrangements may be even
oral in which case no registration is
necessary.
(4) It is well settled that registration
would be necessary only if the terms
of the family arrangement are reduced
into writing. Here also, a
distinction should be made between a
document containing the terms and
recitals of a family arrangement made
under the document and a mere
memorandum prepared after the family
arrangement had already been made
either for the purpose of the record
or for information of the court for
making necessary mutation. In such a
case the memorandum itself does not
create or extinguish any rights in
immovable properties and therefore
does not fall within the mischief of
Section Sec.17(1)(b) of the
Registration Act and is, therefore,
not compulsorily registrable;
(5) The members who may be parties to the
family arrangement must have some
antecedent title, claim or interest
even a possible claim in the property
which is acknowledged by the parties
to the settlement. Even if one of the
parties to the settlement has no title
but under the arrangement the other
party relinguishes all its claims or
titles in favour of the such a person
and acknowledges him to be the sole
owner, then the antecedent title must
be assumed and the family arrangement
will be upheld and the Courts will
find no difficulty in giving assent to
the same;
(6) 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. (emphasis supplied)
The specific case in the plaint is that the parties to
the suit assembled in the house of defendant No.4 on
the 41st day of the death of Oommen Simon and agreed to
re-partition the property. The settlement was reduced
into writing evidenced by Ext.A1 agreement to which
the plaintiff and the defendants except defendant No.7
subscribed their signature. There is no case for the
parties that a decision was already taken to re-
partition the property and that it was recorded in
Ext.A1 agreement as a past transaction. The execution
of Ext.A1 agreement was contemporaneous with the
decision to re-partition the property in supercession
of all the earlier deeds. Ext.A1 agreement purporting
to extinguish the existing rights and create new rights
therefore requires registration under Section 17(1)(b)
of the Registration Act, 1908. Ext.A1 agreement on the
other hand intends to create right in presenti and the
same sans registration has no validity in the eye of
law as a family settlement. We are fortified in this
view by the decision in Tek Bahadur Bhujil v. Debi
Singh Bhujil and others [AIR 1966 SC 292] wherein it is
held as follows:-
"Family arrangement as such can be arrived
at orally. Its terms may be recorded in
writing as a memorandum of what had been
agreed upon between the parties. The
memorandum need not be prepared for the
purpose of being used as a document on
which future title of the parties be
founded. It is usually prepared as a
record of what had been agreed upon so that
there be no hazy notions about it in
future. It is only when the parties reduce
the family arrangement in writing with the
purpose of using that writing as proof of
what they had arranged and, where the
arrangement is brought about by the
document as such, that the document would
require registration as it is then that it
would be a document of title declaring for
future what rights in what properties the
parties possess." (emphasis supplied)
Ofcourse an unregistered agreement could be used as a
corroborative evidence to explain the subsequent
conduct of parties as held in Subraya M.N. v. Vittala
M.N. And others [2016 SAR (Civil) 772 (SC)].
7. We agree with the proposition that a
family settlement is binding on the members of the
family even if one of the parties have not subscribed
his signature to the deed. But there should be
clinching evidence to show that the party who is not a
signatory to the deed has acquiesced in the settlement
by his subsequent conduct. The decisions in Munnalal v.
Suraj Bhan and others (AIR 1975 SC 1119) and Narendra
Kante v. Anuradha Kante and others (2010 (2) SCC 77)
lend support. There is no such conduct on the part of
the defendants to hold that they have acquiesced in the
family settlement evidenced by Ext.A1 agreement in
order to operate as an estoppel. The mere fact that
defendants 3, 4 and 7 signed a cheque for ` 1,90,278/-
on 10.6.1989 in favour of the plaintiff towards his
share of the compensation amount has no significance.
The same done pending the disposal of O.S.No.79/1989
filed on 5.4.1989 dividing the compensation amount
equally between the mother and children was surely a
transaction hit by lis pendens. Nothing much turns out
on this transaction even though it is stated that the
amount was agreed to be divided equally amongst the
daughters only under the Will.
8. We also find that the terms in Ext.A1
agreement are inchoate and incomplete as regards the
quantum of maintenance to defendant No.1 and the extent
of financial support to defendant No.3. The same are
yet to be finalised by the parties and moreover Ext.A1
agreement itself stipulates the necessity for a
registered conveyance deed. There has also to be a
division by metes and bounds of 3.18 acre and 1 acre
allotted to defendants 2 to 7 jointly as per the
agreement for the lis to end. An unregistered agreement
can be treated as a family settlement only if it
records past transaction and is complete in itself as
regards the rights and liabilities. We are also not
impressed by the contention of the plaintiff that
defendant No.7 left the place even before the drafting
of Ext.A1 agreement was completed. This is so
notwithstanding the fact that the presence of defendant
No.7 at the place is conceded to by defendant No.6 in
her written statement and also in evidence. We find
that Ext.A1 agreement falls short of the requisite
essentials to hold that the same is a family settlement
in supercession of all the earlier deeds.
9. Neither the decree in O.S.No.67/1991 nor
the decree in O.S.No.98/1991 can be faulted with since
the same is filed by defendant Nos.7 and 6 on the basis
of Exts.B8 and B13 settlement deeds. Very little
evidence is required to show that a settlement deed in
favour of a dependent has been acted upon unless the
gift is onerous or burdensome. Equally impeccable is
the preliminary decree for partition in O.S.No.68/1991
wherein the personal law has been applied in relation
to the 10 cents of land left out in the deeds. The
property covered by Ext.B11 settlement deed has been
rightly directed to be divided amongst defendants 2 to
7 equally as per the terms thereof. There is no
warrant to interfere with the impugned judgment whereby
O.S.No.79/1989 is dismissed and O.S.Nos.67/1991,
68/1991 and 98/1991 are decreed.
The Appeal Suit and the Regular First Appeals
are dismissed with costs.
Sd/-
V.CHITAMBARESH,
Judge.
Sd/-
K.HARILAL,
Judge.
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