Whether it is mandatory to register a memorandum of family settlement if a family member not having title to the property previously was allocated a particular property?

The settled legal position is

that when by virtue of a family settlement or arrangement,

members of a family descending from a common ancestor or a

near relation seek to sink their differences and disputes, settle

and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete

harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a threeJudge  Bench of this Court had observed thus: “

9.….. A family arrangement by which the property is

equitably divided between the various contenders so as to

achieve an equal distribution of wealth instead of

concentrating the same in the hands of a few is

undoubtedly a milestone in the administration of social

justice. That is why the term “family” has to be

understood in a wider sense so as to include within its

fold not only close relations or legal heirs but even those

persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spes

successionis so that future disputes are sealed for ever

and the family instead of fighting claims inter se and

wasting time, money and energy on such fruitless or futile

litigation is able to devote its attention to more

constructive work in the larger interest of the country.

The courts have, therefore, leaned in favour of

upholding a family arrangement instead of disturbing

the same on technical or trivial grounds. Where the

courts find that the family arrangement suffers from a

legal lacuna or a formal defect the rule of estoppel is

pressed into service and is applied to shut out plea of

the person who being a party to family arrangement

seeks to unsettle a settled dispute and claims to

revoke the family arrangement under which he has

himself enjoyed some material benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated

the contours of essentials of a family settlement as follows: “

10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form,

the matter may be reduced into the form of the following

propositions:

“(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 of the family;

(2) The said settlement must be voluntary and

should not be induced by fraud, coercion or undue

influence;

(3) The family arrangement 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

17(2) 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

relinquishes all its 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 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)

Again, in paragraph 24, this Court restated that a family

arrangement being binding on the parties, clearly operates as an

estoppel, so as to preclude any of the parties who have taken

advantage under the agreement from revoking or challenging the

same. In paragraph 35, the Court noted as follows: “

35. … We have already pointed out that this Court

has widened the concept of an antecedent title by holding

that an antecedent title would be assumed in a person

who may not have any title but who has been allotted a

particular property by other party to the family

arrangement by relinquishing his claim in favour of such

a donee. In such a case the party in whose favour the

relinquishment is made would be assumed to have an

antecedent title. …..”

And again, in paragraph 36, the Court noted as follows: “

36. … Yet having regard to the near relationship

which the brother and the soninlaw

bore to the widow

the Privy Council held that the family settlement by which

the properties were divided between these three parties

was a valid one. In the instant case also putting the case

of Respondents Nos. 4 and 5 at the highest, the position

is that Lachman died leaving a grandson and two

daughters. Assuming that the grandson had no legal title,

so long as the daughters were there, still as the

settlement was made to end the disputes and to benefit

all the near relations of the family, it would be sustained

as a valid and binding family settlement. …”

While rejecting the argument regarding inapplicability of principle

of estoppel, the Court observed as follows: “

38. … Assuming, however, that the said

document was compulsorily registrable the courts

have generally held that a family arrangement being

binding on the parties to it would operate as an

estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the

same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: 42.

..… In these circumstances there can be no doubt

that even if the family settlement was not registered

it would operate as a complete estoppel against

Respondents Nos. 4 and 5. Respondent No. 1 as also the

High Court, therefore, committed substantial error of law

in not giving effect to the doctrine of estoppel as spelt out

by this Court in so many cases. …”

(emphasis supplied)

 A priori, we have

no hesitation in affirming the conclusion reached by the first

appellate Court that the document Exhibit P6

was nothing but a

memorandum of a family settlement. The established facts and

circumstances clearly establish that a family settlement was

arrived at in 1970 and also acted upon by the concerned parties.

That finding of fact recorded by the first appellate Court being

unexceptionable, it must follow that the document Exhibit P6

was merely a memorandum of a family settlement so arrived at.

Resultantly, it was not required to be registered and in any case,

keeping in mind the settled legal position, the contesting

defendants were estopped from resiling from the stated

arrangement in the subject memorandum, which had recorded

the settlement terms arrived at in the past and even acted upon

relating to all the existing or future disputes qua the subject

property amongst the (signatories) family members despite

absence of antecedent title to the concerned property.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7764 OF 2014

Ravinder Kaur Grewal Vs  Manjit Kaur 

A.M. Khanwilkar, J.

Dated: July 31, 2020.

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Whether the Court can treat the partition of self-acquired property by a father as a family arrangement or gift to sons?

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 relinquishing' all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the 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 the property falling to his or her share is concerned and therefore no conveyance is necessary.

 But in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sale and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.

In view of our finding that Narayana Pillai dealt with his self-acquired properties under Exhibit A-1, the other parties to the document had no antecedent title. It could not be pretended that there was any bona fide dispute between Narayana Pillai and his children and grandchildren when he divided and gave his properties to them under Exhibit A-1. In Ram Charan Das v. Girija Nandini Devi MANU/SC/0358/1965 : [1965]3SCR841 , relied on by Sri Vedantachari, it is pointed out that it is not necessary, as would appear from the decision in Rangasami Gounden v Nachiappa Gounden (1919) I.L.R. 42 Mad. 523 : L.R. 46 IndAp 72: 36 M.L.J. 493, that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property and that all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground, as, say, affection. It is no doubt true that the children and grandchildren of Narayana Pillai had a claim to the affection of Narayana Pillai. But it could not on that ground be said that they had a claim or semblance of a claim against his self-acquired property. If the contention of Sri Vedantachari that even a semblance of a claim on some grounds such as affection is sufficient to support Exhibit A-1 as a family arrangement is accepted, it would lead to the result that every deed of gift by a father to his children or near relations could be treated as a family arrangement, though the other requisites of the family arrangement are absent. It is not possible to build an argument that Exhibit A-1 evidences a family arrangement solely on the stray observation in the above Supreme Court decision made in the course of a discussion whether a transaction which was a family settlement amounted to a transfer or creation of trust in the property. It is clear from the Supreme Court decision that the transaction in question in that case is a family arrangement entered into by the parties bona fide for the purpose of putting an end to the dispute among the family members. In the present case, neither the appellant nor the sixth respondent has stated that there were any disputes, or that any dispute was in contemplation which necessitated any family arrangement. In Jatru Pahan v. Ambikajit Prasad MANU/BH/0175/1957 : AIR 1957 Pat 570 , it has been held that the existence of a family dispute is not essential to the validity of a family arrangement, nor is the existence of a doubtful claim based on the allegation of an antecedent title essential for the validity of a family arrangement; such arrangement may bind the parties to it if it is for the benefit of the family, or for the maintenance of peace and harmony and the avoidance of future discord or for the preservation of the property, but there must be some kind of consideration before an agreement in respect to the division of family property can be held to be a valid family arrangement, though in such cases the Court will not scrutinize the quantum of consideration with meticulous nicety. Again in Gangabai v. Punau Rajwa A.I.R. 1956 Nag. 261, it was held that where a family arrangement was merely a cloak for the transfer it could not be upheld. In Natesan v. Commissioner of Income Tax I.L.R. (1964) 1 Mad. 502, it is pointed out that a separate property of a coparcener cannot be fragmented into shares and disposed of by allotment to sharers under the guise of partition without the element of transfer of property. Even if the document Exhibit A-1 is styled as a family arrangement, it is really a gift by Narayana Pillai to the several members of his family. It is true the parties to the document get rights under it. But it is not by virtue of any antecedent title or bona fide claim. For the foregoing reasons, we see no reason to differ from the finding of the learned Second Additional Subordinate Judge that, though Exhibit A-1 purports to be a partition deed, it is really a gift deed by Narayana Pillai in favour of the members of his family.

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

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What are duties of executor of will?

 The irrevocability of an executor's renunciation is not to be taken lightly. It is the conscious giving up (hence, 'renunciation') of a very solemn charge in the nature of a duty of an entrustment; and this is a special conferment on a named individual by a person now dead. An executor's heirs cannot succeed to his position. He, and he alone, can occupy that position. For this reason, there is no 'deemed' or 'implied' renunciation.1 It must be in writing, or it must be to the Court.2

8. The executor (or administrator) of a deceased is his legal representative. The property of the deceased vests in him as such.3 No right as an executor is established unless probate is granted.4 Probate can only be granted to an executor named as such in the Will, and no one else, though the appointment may be express or implied.5 Probate, when granted, establishes the Will from the death of the testator and validates all intermediate acts of the executor as such.6

9. An executor is a confidante of choice of the testator. Once he renounces this most solemn trust, the renunciation is irrevocable and irreversible. He cannot be allowed re-entry. He cannot renounce or recant his renunciation. Otherwise, executors will constantly step in and out of probate proceedings. If executors constantly renounce executorship and then renounce their renunciation, the inevitable result is uncertainty, confusion and chaos in the administration of the estate in terms of the Will. This is not what the law contemplates as the duties of an executor at all.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 74 of 2015 in Testamentary Suit No. 14 of 2004 in Testamentary Petition No. 80 of 2004 

Decided On: 03.05.2018

Vasant Narayan Sardal Vs. Ashita Tham and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

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Whether property acquired by female from funds of joint family can be treated as her stridhan?

 It is evident from the materials on record that the property so acquired in the name of Ash Kuer from the joint family fund was treated as joint family property right from the very beginning and the family arrangement was made between the members of the family for avoiding any future disputes and for preserving peace and security of the family by avoiding litigation. The suit property acquired in the name of Ash Kuer even if the said property was to be as stridhan of Ash Kuer, the same had become part of the hooch pouch of the joint family property and evidently for the purpose of peace in the family and avoiding future litigation. The family arrangement was made on 13.12.1987. However, I find no legal infirmity in the concurrent findings recorded by the Courts below that the joint family fund was the source of the money used for the purchase of the suit property in the name of Ash Kuer. The same, therefore, has rightly not been held to be stridhan by the courts below.

IN THE HIGH COURT OF PATNA

Second Appeal No. 229 of 2002

Decided On: 04.07.2018

 Narendra Prasad Singh Vs. Ram Ashish Singh and Ors.

Hon'ble Judges/Coram:
Chakradhari Sharan Singh, J.

Citation: AIR 2018 Patna 205

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Whether muslim father can make family arrangement in respect of family properties?

It is true that there is no concept of joint family in Muslims but it was open to late Shri Shaikaji to give his property to his children in a particular manner during his lifetime, which he rightly did, so as to avoid any dispute which could have arisen after his death. The arrangement so made was duly accepted by the family members and it was also acted upon. Only thereafter a formal record of the said fact was made by late Shaikaji in Ex. D.7.

14. In our opinion, genuineness of Ex. D7 was rightly not questioned by the lower Appellate Court and the High Court was not correct when it questioned its legality and validity, especially when the Plaintiffs had filed a suit after more than 25 years of the aforestated understanding, which had taken place during or prior to 1958.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7237 of 2010

Decided On: 29.06.2016

 Ajambi Vs. Roshanbi and Ors.

Hon'ble Judges/Coram:

Anil R. Dave and A.K. Goel, JJ.

Citation:(2017) 11 SCC 544

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What is definition of family for purpose of family arrangement?

Reliance was also placed upon judgment in the case of Kale v. Deputy Director of ConsolidationMANU/SC/0529/1976 : (1976) 3 SCC 119 to highlight the nature, effect and value of family arrangement under the Hindu Law. All the three Judges deciding this case were agreed on the relevant proposition that the object of family arrangement is to sink their differences and disputes and resolve their conflicting claims to buy peace of mind and bring about complete harmony and goodwill in the family. Paragraph 9 of the judgment deserves full respect and is extracted hereinafter:

9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection,Kerr in his valuable treatise Kerr on Fraud at p.364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.

The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve as equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term 'family' has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

A family arrangement is an agreement between members of the same family, intended to be generally or 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 agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied.

Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, 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.

The legal principles enunciated above have not been disputed.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3687 of 2006, 503 of 2001 and 2763 of 2002

Decided On: 01.12.2015

Rajni Sanghi Vs. Western Indian State Motors Ltd. and Ors.

Hon'ble Judges/Coram:

Vikramajit Sen and Shiva Kirti Singh, JJ.

Citation:(2015) 16 SCC 631

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Whether unregistered deed of acknowledgment of partition between brothers is admissible in evidence?

During course of argument, petitioner also relied on

a decision of the Hon’ble Apex Court in the case of Kale and others v,

Deputy Director of Consolidation and others reported in A.I.R. 1976

SC 807. In Paragraph-10 of the above judgment, the Hon’ble Apex Court

held as follows:

“10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form, the

matter may be reduced into the form of the following

propositions:

 (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 of the family; 5

 (2) The said settlement must be voluntary and should

not be induced by fraud, coercion or undue influence:

 (3) The family arrangement 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 pre pared after the family arrangement had

already been made either for the purpose of the record or for

in formation 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 s. 17(2) 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 'It 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 its claims or

titles in favour of such a person and acknowledges him to be

the sole 9 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.”

6. Considering the submission of the learned counsel for the

petitioner, for the factual back drop of this case and after looking to the

decision from paragraph-10 of the Hon’ble Apex Court referred to

hereinabove, this Court finds there has been wrong appreciation on the

question of acceptance of unregistered partition deed by the revisional

authority resulting thereby there is an illegal and erroneous judgment.

 ORISSA HIGH COURT: CUTTACK

 O.J.C.No.1168 of 1997

Dharanidhar Lenka  Vs  Gajendranath Lenka 

Date of Judgment: 25.01.2017

P R E S E N T:

 MR. JUSTICE BISWANATH RATH

Citation:AIR 2017 Orissa 50

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Leading Supreme court Judgment on family settlement

Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus;

"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend."

The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

"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 agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.

Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, 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".

In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(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 of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:

(3) The family arrangement 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 pre pared after the family arrangement had already been made either for the purpose of the record or for in formation 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 s. 17(2) 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 'It 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 its claims or titles in favour of such a person and acknowledges him to be the sole 9 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.

Supreme Court of India

Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976

Equivalent citations: 1976 AIR 807, 1976 SCR (2) 202,(1976)3SCC119

Hon'ble Judges/Coram:
R.S. Sarkaria, S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.

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What are essential requirements for valid family settlement?

 On the question of family settlement, a celebrated judgment of the Constitution Bench of the Hon'ble Apex Court was rendered in Civil Appeal No.37 of 1968, Kale and others Vs. Deputy Director of Consolidation and others, on 21.1.1976, reported in 1976 (2) Revenue Decisions 69. This judgment was unequivocal on the question of family settlement/arrangement and it is reigning the commands of law in this field even today. The significant points of the judgment are being cited as below:

"......By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity andhomogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire county, is the prime need of the hour. A family arrangement by which the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term 'family' has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, asemblance of a claim or even if they have a spes secessionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle the settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.....

In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions :

(1). The family settlement must be 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 of the family.

(2). The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3). The family arrangement 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 17 (2) of the Registration Actand 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 relinquishes all its 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 family arrangement will 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 dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement.

A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement."

Uttaranchal High Court

Smt Rama Devi And Another vs Mahendra Pal And Others on 15 September, 2015

Citation: 2016 (114) ALR 852, 2016 130 RD27                                            

            Writ Petition (M/S) No. 689/2015

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Whether Family arrangement by which party take share in property amounts to conveyance of property?

A family arrangement, on the contrary, is a 
transaction between members of the same family for the benefit 
of the family so as to preserve the family property, the peace 
and   security   of   the   family,   avoidance   of   family   dispute   and 
litigation and also for saving the honour of the family. Such an 
arrangement   is   based   on   the   assumption   that   there   was   an 

antecedent title in the parties and the agreement acknowledges 
and defines what that title is. It is for this reason that a family 
arrangement by which each party takes a share in the property 
has been held as not amounting to a "conveyance of property" 
from a person who has title to it to a person who has no title. ”
Thus,   the   Apex   Court   has   held   that   the   family 
arrangement, by which party takes share in the property, will 
not amount to a conveyance of the property.
There is no dispute that the suit house was allotted to the 
share  of   present   petitioner   and   his   name   is   mutated   in   relevant 
revenue record on 24.7.1986.  Thus, n view of the dictum in the case 
of  Sk.Sattar   Sk.Mohd.   Choudhari  by   the   Apex   Court,   the   lower 
appellate   court   ought   to   have   seen   that   the   facts   in   the   case   of 
N.N.Engineer are clearly distinguishable and the ratio laid down by 
the Apex Court in said case is not applicable to the case I hand. 
Since the landlord has successfully pointed out that the 

tenant was in arrears of rent for more than six months, he was not 
entitled for the protection, and therefore, the lower appellate court, in 
my view, has committed a mistake in upsetting the well  reasoned 
judgment and decree passed by the learned trial court.{21,22}


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
 WRIT PETITION NO. 1597 OF 2001
     Subhash Narsopant Saundankar,

VERSUS
Chandrakant Babanrao Salunke,

CORAM  :  V.M.DESHPANDE, J.
                DATED   :  8   January, 2015
Citation;AIR 2015(NOC)765 BOM

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Leading judgment on family Arrangement

In Appovier v. Ramasubba Aiyan, (1866) 11 MIA 75, Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai v. Sadashiv Dhundiraj, (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with, and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.
In Raghubir v. Moti, (1913) 35 All 41 PC and Anurago Kuer v. Darshan Raut, AIR 1938 PC 65, the partition by agreement was explained by observing, that, if there be a conversion of joint tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of the separate right. This was also held in Amrit Rao v. Mukundrao, (1919) 15 Nag LR 165.

The “family arrangements” also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result , not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate. Among all the coparceners, it has been held that an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 336 of 2013

Decided On: 30.05.2013

Appellants: Harey Krishna Agrawal and Others
Vs.
Respondent: Jairaj Krishna and Others

Hon'ble Judges/Coram:Sudhir Agarwal, J.

Citation: 2013(7)ADJ447, 2013(6) ALJ 282., 2014 (102) ALR 88, 2014 1 AWC741All, 2014 122 RD240

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Basic concept of family arrangement or family settlement

 The next question is whether Ex.B.14 is a family settlement' or a family arrangement'. In Kale case (supra), while considering what family settlement' or family arrangement' is, Fazal Ali J, speaking for himself and V.R. Krishna Iyer, J., observed as follows in Paras 9 and 10:

"The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.........

(10) In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement 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 17(2) of the Registration Act and is, therefore, not compulsorily registerable;

(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 relinquishes all its 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 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."

Andhra High Court

Kavitha Goud vs Nookala Sudarshan Reddy And Ors. on 27 June, 2003

Equivalent citations: AIR 2004 AP 326, 2004 (4) ALD 324, 2004 (5) ALT 293

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