To put 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 oral even in which case no registration is necessary.
(4) It is well settled that registration would be necessary only if the terms of the family arrangements 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 not 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 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. Smt. Rama Devi v. Mahendra Pal, 2016 (114) ALR 852.
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. Ram Bilas v. Raj Kumar, 2014 (125) RD 660.
It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. Kesharbai v. Tarabai Prabhakarrao Nalawade, 2014 (3) AWC 2732.
“Household” and “Family” are not synonymous to each other and both the provisions would take its colour, in reference to the context it has been used, keeping in view the object and purpose sought to be achieved. According to Concise Oxford English Dictionary ‘family’ means a group consisting of two parents and their children living together as a unit; a group of people related by blood or marriage; the children of a person or couple; all descendants of a common ancestor.
Black’s law dictionary defines ‘family’ as (i) A group of persons connected by blood, by affinity or by law especially within two or three generations (ii) A group consisting of parents and their children (iii) A group of persons who live together and have a shared commitment to a domestic relationship.
According to Law Lexicon term ‘family’ may be said to have a well defined, broad and comprehensive meaning in general, it is one of great flexibility and is capable of many different meanings according to the connection in which it is used. Thus, it may be ‘children’, ‘wife and children’, ‘blood relations’ or the ‘members of the domestic circle’. According to the context, it may be of narrow or broad meaning as intention of the parties using the word, or as the intention of law using it, may be made to appear.
In its ordinary and primary sense the word ‘family’ signifies the collective body of persons living in one house or under one head or manager or one domestic Government. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.
According to Law Lexicon ‘family’ may include even domestic servants and sometimes persons who are merely boarders.
On the other hand the term “household” means the collection of individuals who normally eat food prepared in the same kitchen. In Black’s Law Dictionary household has been mentioned belonging to the house and family as well as a family living together or a group of people who dwell under the same roof and in the Law Lexicon it has been described as number of persons dwelling under the same roof and composing a family and by extension all who are under one domestic head.
The term ‘family’ and ‘household’ are capable of wide and varying meaning and same cannot be left to be assigned a meaning in its general terms and the same has to be interpreted in reference to the context it has been used keeping in view the overall object and purpose sought to be achieved. Indrapal Singh v. State of U.P. and Others, (2014) 1 UPLBEC 379 (FB)
In a recent judgment of the Allahabad High Court (Phool Chand v. Joint Director of Consolidation),it was held as under:
“The presumption under the Section is that if the deed is signed by the person giving and the person taking in adoption the provision has been complied with. It is the person challenging the factum of adoption who has to disprove the adoption. A mere plea that the deed is not genuine is not sufficient to rebut the presumption under Section 16 of the Act. Under such circumstance, the plea that the requirements of Section 11 of the Act had not been satisfied are not made out and hence loose all significance with the registration of the deed of adoption.”