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Married Hindu Woman Can Engage In Family Settlements With Her Heirs On Paternal Side

Author: Sivapuram V.L. Thejaswini Student, Alliance University

This was a recent judgement in ‘Khushi Ram & Ors. v. Nawal Singh & Ors.dated February 22, 2021. It was decided in the Apex Court by J. Ashok Bhushan and J. R Subhash Reddy.

Facts of the case –

  1. Badlu, was the owner of agricultural area, which is situated in village Garhi Bajidpur. He had two sons – Bali Ram & Sher Singh. Sher Singh died in 1953 His widow was Smt. Jagno. Plaintiffs are the descendants of Bali Ram. After his death in 1953, Smt. Jagno got the share of her late husband by through inheritance. This share was up to half of the land that was owned by Badlu.

  2. A suit was later filed by the respondents with a claim that Smt. Jagno has settled land in favour of the sons of her brother who are the plaintiffs.

  3. She filed a written statement in the suit by admitting the claim made by plaintiffs. The consent decree was passed by trial court in favour of Nawal Singh & Ors. declaring them as owners with respect to that land.

  4. The appeal was dismissed by the first appellate court & affirmed on the findings of the trial court.

A second appeal was later admitted with the following question of law;

Whether a decree suffered by Jagno required registration under ‘Section 17(1) of the Indian Registration Act, 1908’ where the defendant has no pre-existing right ?

Arguments from the Appellants –

  1. Family settlements could not have been entered by Smt. Jagno with the strangers of the family. Joint Hindu Family cannot be constituted by a Hindu widow with the descendants of her brother i.e., her paternal side.

  2. Members should have antecedent title (or) pre-existing right in property that is in dispute in case of settlement of family arrangements.

  3. Jagno could have transferred her share of property to the respondents (or) outsiders only in accordance with the provisions of Transfer of Property Act, Indian Registration Act and the Indian Stamp Act.

  4. Section 17 of the Indian Registration Act, makes the registration compulsory for a compromise decree.

  5. The decree was not registered here, so it was liable to be ignored and cannot be inoperative.

Arguments from the Respondents –

  1. The sons of brother of Smt. Jagno were not strangers to her & she can enter into family settlements with them.

  2. The expression “family” should not be interpreted with a restricted meaning; in case of family settlement rather it has to be interpreted with a wider meaning to include the members, who are related in all the ways.

  3. The registration was not required for the said decree by virtue of Section 17(2)(vi) of the Indian Registration Act

  4. Family settlements can also be a result of love & affection where she has settled the properties in favour of her nephews.

Judgements on which Appellants relied –

  1. In Bhoop Singh v. Ram Singh Major & Ors., it was held that decree (or) order of compromise decree recognizing new right (or) interest at the present time in immovable property of value of 100 (or) above is compulsorily registrable[1].

  2. In Mata Deen v. Madan Lal & Ors., the ground of order was based on family settlement. In this case, it was required that the registration of a decree is mandatory under Section 17(2)(vi) of the Registration Act, if not registered then the case was sent back for consideration of the question of law[2].

Judgement on which Respondents relied –

  1. In Som Dev & Ors. v. Rati Ram and Anr., the order was passed on the basis of recognition of pre-existing rights in case of family arrangement. In this case, it was decided that the registration of a decree is not mandated by Section 17(1)(b)[3]

Judgements considered by the courts –

  1. To find out what is the concept of family in cases where a family settlement could be entered, the court considered that in Ram Charan Das v. Girjanandini Devi and Ors., where it was decided that the parties to a family arrangement should have relation in any aspect to maintain an assertion over the property (or) even an appearance of a claim[4].

  2. By elaborately considering all aspects of the family settlement, it was laid down in Kale and Ors. v. Deputy Director of Consolidation and Ors., that the term ‘family’ has to be interpreted and given a wider ambit so as to incorporate not only the relations by affinity but also to include those kind of persons who have an antecedent title (or) spes succession etc[5].,

  3. In this case, a family settlement was entered by two sisters of Kale’s mother where Kale was not a legal heir according to P. Tenancy Act, 1939 but this family settlement was held to be valid by the court[6].

Judgement –

In this case, the respondents were nephews i.e., sons of brother of Smt. Jagno.

Court laid down some propositions regarding the important features of a family settlement;

  1. These settlements are to be bonafide between the members of the family. Such kind of settlements are to resolve the rival claims & disputes by a reasonable and impartial division & allocation of properties between the members.

  2. These settlements should not be incorporated by undue influence. They must be voluntary.

  3. When no registration is necessary, then these arrangements between the members of family may also be oral.

  4. If the terms of such arrangements are put into writing, then the registration would be necessary.

  5. The members (or) the parties to such arrangements needs to have an antecedent title.

  6. If any of the parties has no antecedent title, then if the other party give away all its claims (or) titles to such a person/party & there by recognizing him as the sole-owner, then the title must be presumed in favour of them & assent has to be given.

  7. Under Section 15 of the Hindu Succession Act, 1956General rules of succession in the case of female Hindus;

Section 15(1) states that; The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, –

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c)thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother[7].

  1. An observation of Section 15(1)(d) gives an idea that the heirs on the paternal side in the capacity of the female are not outsiders and they are to be included as heirs in cases of succession also.

  2. When she has entered into the settlement, she was the real owner of that particular land.

  3. Court could find no merit in the submission of appellants that the respondents were outsiders to the family[8].

End Notes

[1] (1995) 5 SCC 709

[2] Civil Appeal No. 890 of 2008

[3] (2006) 10 SCC 788

[4] 1965 (3) SCR 841

[6] (1976) 3 SCC 119

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