Advocate Ravinder. P, I am also including some citations from the internet which I have managed to pull out and from all these it can evidently be said that an unregistered family settlement has sufficient teeth to enforce partition on its basis if some basic conditions about it has been met and if it was made honestly for settlement of family disputes.
(a) A Family Settlement being a Memorandum does not need to be registered as per Section 17 of Registration Act to be included as evidence as it does not confer any ownership title to any party. In Shyam Sunder And Ors. vs Siya Ram And Anr. on 28 July, 1972 it was held by the Allahabad High Court that a compromise could have been taken into consideration as a piece of evidence even if it was not registered and such compromise can be relied upon as admission of antecedent title. To arrive at this conclusion reliance has also been placed on the judgement in the case of Ramgopal vs Tulshi Ram And Anr. on 3 July, 1928 wherein it was said that while the writing cannot be used as a document of title, it can be used as piece of evidence for what it may be worth, e.g., as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct." They further said “we have held above that, to effect a family arrangement, under the present law prevailing in India it is not necessary to execute a formal document……. The possession in that case, of a party, would be lawful and no question of "the rightful owner" will ever arise.” Again in the case of Tek Bahadur Bhujil vs Debi Singh Bhujil And Ors. on 26 February, 19652, the Supreme Court enunciated the law with regard to family arrangement as follows:- "12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a 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 be no hazy notions about it in future.”
(b) A Family Settlement is also protected by the Doctrine of Estoppel even if it is unregistered. The most important citation regarding this comes from the Supreme Court itself wherein the three judge bench judgement of Supreme Court in Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976 stated that though the requirement of a Family Settlement to be registered as per Section 17 of Evidence Act is because it confers right, title and interest to immovable property but that is substantive law. As the law of evidence also recognizes estoppel so any Family Settlement which is justified and followed so whether registered or unregistered is not important. If it is found to bonafide resolve family disputes by a fair and equitable distribution of properties, then if it has been acted upon by the parties then the doctrine of estoppel can be invoked to estop a party from urging to the contrary.
In the same case judges has also said “40………………., assuming however that 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. This principle has been established by several decisions of this court as also of the Privy council.”
Their Lordships in Kale's case (supra) proceeded to elucidate the law as follows:-
"The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that 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.
© Hiren Bibi v. Sohan Bibi, AIR 1914 PC 44; Devi Dayal v. Wazir Chand, (1921) 61 Ind Cas 328 (Lah) and Sailesh Chandra Sarkar v. Bireshwar Chatterjee, AIR 1930 Cal 559 have taken the view that an unregistered document can be relied upon in proof of admission of title. In Hiren Bibi's case, the Privy Council observed that such a compromise can in no sense of the word be an alienation of property but a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent, and by way of compromise, admitted by the other parties.
i am still searching for other citations but it can confidently be said that my lawyer reduced my father's share by rejecting the Family Settlement since it was not registered and thereby put me in a dilemna.
