please help

Dear Pankaj
please specify the nature whether it is a memorandum of previous oral partion or memorandum creating present interest.
in the first situation it can be written on plane paper for which no registration is required and in second situation registration is compulsory

Hello,

Family arrangement as such can be arrived orally or may be recorded in writing as 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 are no hazy notions about it in future. 

Depending on the wordings employed, facts and circumstances and other factors, it may or may not required be stamped and registered. Each document has to be scrutinized on the basis of the wordings contained in the document to arrive at a conclusion whether the same requires being stamped and registered or otherwise. At times, it may only be stamped, but not registered in which case it can be looked into for collateral purposes. If it is required to be stamped and registered, but is not properly stamped and registered, it cannot be looked into for any purpose. Whether a purpose is collateral or not, is a matter which has to be gathered from the facts and circumstances concerned.

Courts lean in favour of family arrangements and all 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. The family settlement arrived at between the parties which is in writing requires registration and an unregistered family settlement will not be admissible as an evidence . 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 circumstances, the memorandum itself does not create or extinguish any rights in immovable properties and for that reason does not fall within the mischief of Section 17(2) of the Registration Act and is, hence, 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 that required registration was not registered, it would operate as a complete estoppel against the parties who have taken advantage of the family arrangement 

A decree of partition is an instrument of partition and therefore is required to be stamped under Schedule 1 of Article 45 r/w Section 2(15) of the Stamp Act. However, an oral family settlement dividing or partitioning the property is not required to be stamped. Similarly, a memorandum recording an oral family settlement which has already taken place is not an instrument dividing or agreeing to divide property and is therefore not required to be stamped. 

On the other hand, an oral partition by the way of family settlement does not require registration. While dealing with a memorandum of family arrangement through family settlement, the Apex Court held that the principles which apply to the case of an ordinary compromise between strangers does not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to them and that the family arrangement may have been oral in which case, no registration is necessary and that the registration would be de rigueur only if the terms of the family arrangement are reduced into writing.” 

It is settled law that a memorandum of family settlement 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, 1908 and is, therefore, not compulsorily registrable. Hence, any decree drawn by the court recognizing an oral partition between the members of the family which had taken place earlier and concretised in a memorandum of family settlement does not require execution on a stamp paper or require compulsory registration.  

While an instrument of partition which operates or is intended to operate as a declared volition constituting or serving ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration as enumerated under Section 17(1)(b) of the Act, writing which merely recites that there has in time passed been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. Also, a memorandum of family arrangement filed for its information for mutation of names, is not compulsorily registrable and can be used in evidence and is final and binding on the parties. 

 Source:Indian law Journal

Hence it depends of the nature of the memorandum in question, if you could be more specific with respect to the facts we could assist you better.

Thank you

This type of settlement helps in mutating the property and as evidence of partition and possession only.   If such settlement deed is given an award status through Legal Services Authority, it carries legal weight and gives a good title.

What are the facts? What is the context?

thank you respected professionals who have devoted their time in writing answers to my question your effort is highly appreciated

Vague and incomplete facts can not lead to form an opinion and oblige.

It is better to seek guidance of your tutor/ guide / professor.