ORAL PARTITION AND FAMILY ARRANGMENT

 ORAL PARTITION AND FAMILY ARRANGEMENT IS  INCLUDED IN FAMILY PARTITION 

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property. The Act was amended by Act 39 of 2005 and a new section 6 was substituted. Sub-section (5) of section 6 and the Explanation thereto read thus:

The Explanation defines “partition” as any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of court. This definition of “partition” does not include oral partition and family arrangement.

Since the amended Act has failed to include oral partition and family arrangement within the definition of “partition”, which are common and legally accepted modes of division of property under the Hindu Law, the Commission undertook this subject suo motu.

1.1 The Hindu Succession Act, 1956 (30 of 1956) is a part of the Hindu Code which also includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956. These Acts brought about revolutionary changes in the law relating to Hindus. It codified the law relating to marriage, succession, adoption, etc.

1.2 The Hindu Succession Act made a revolutionary change in the law relating to succession, especially for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding succession of her husband’s property as also of her father’s property. The Hindu Succession Act

was amended in 2005 by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) to provide that the daughter of a coparcener in a joint Hindu family governed by the Mitakshara Law shall by birth become a coparcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

1.3 Section 6 of Hindu Succession Act deals with devolution of interest in coparcenary property. Section 6, before its substitution by Act 39 of 2005, read as under:

2. JUDICIAL VIEW

2.1 The Supreme Court of India in its judgment dated 21.01.1976 in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 (3) SCC 119, while dealing with a memorandum of family arrangement through family settlement, held that the family arrangements are governed by a special equity peculiar to themselves and that the family arrangement may have been oral in which case no

registration is necessary and that the registration would be necessary only if the terms of the family arrangement are reduced into writing.

2.2 The Supreme Court has observed: -

“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 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. It promotes social justice through wider distribution of wealth. Family therefore has to be construed widely. It is not confined only to people having legal title to the property.

“Courts lean in favour of family arrangements. Technical or trivial grounds are overlooked. Rule of estoppel is pressed into service to prevent unsettling of a settled dispute.

“Family arrangement may be even oral in which case no registration

is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between the 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. “So a document which was no more than a memorandum of what had been agreed to did not require registration.

 “Hence a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the court for its information for mutation of names is not compulsorily registrable and therefore can be used in evidence of the family arrangement and is final and is binding on the parties.

“Even if a family arrangement which required registration was not

registered it would operate as a complete estoppel against the parties who have taken advantage of the family arrangement. “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:

2.4 Thus, it would appear from a review of the decisions (supra), that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties, the matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.

3. RECOMMENDATION by the LAW COMMISSION.

3.1 Oral partition or family arrangement is an extremely valuable power whereby the peace, happiness and welfare of a family are secured and litigation is avoided. It is specifically helpful in the case of illiterate members of a family or who have no means to bear expenditure of legal process/advice etc.

3.2 By the 2005 amendment in the Hindu Succession Act, oral partition and family arrangement which had been effected prior to the enactment would be set at naught. Hence, the Commission proposes a suitable amendment in the Explanation to section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”.