ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy, J.
Zaheda Begum & Anr. —Appellants
versus
Lal Ahmed Khan & Ors. —Respondents
A.S. No. 22/2007
Decided on 13.8.2009

IMPORTANT POINTS
A family settlement can be among not only heirs of a particular class, but also can take in its fold, persons outside the purview of succession.
(2) Where family settlement deed did not create right in immovable property in presenti but in further, deed was in required to be compulsivity registered.

Headnote:(i) Family Settlement—Suit for partition on basis of family settlement already effected amongst parties—Plaintiff-appellant No.2 was niece of ‘G’ whose property was being claimed in suit as per family settlement though she was out side the purview of succession to said property—Whether there could be a family settlement among persons who were not sharer according to law of succession? Yes

        Held: Settlement in family is not confined to any particular category of people. The medium of settlement is chosen to resolve the disputes among the family members. It is resorted to, not only when the disputes as such exist, but also when there exist a possibility for them to surface. (Para 14)

       A family settlement need not be confined to the one, among the legal heirs, or successors. If the aim is only to provide for arrangement in accordance to succession, the whole exercise would be redundant. The reason is that the Law of Succession would take its course. It is only when an arrangement, in slight or major deviation from natural succession, as a price for bringing about comity and harmony is chosen, that a settlement comes into existence. (Para 16)

       Such is the importance, accorded, to the family settlements by the courts. Sub-section (24) of Section 2 of the Indian Stamps Act defines that term as under:

        “Settlement” means any non-testamentary disposition, in writing, of movable and immovable property made-

        a) in consideration of marriage,

        (b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or

        (c) for any religious or charitable purpose

       From this provision it is clear that the settlement, particularly within a family need not be restricted to the members of the family upto a particular degree. Therefore, the irresistible conclusion is that a family settlement can be among not only heirs of a particular class, but also can take in its fold, persons outside the purview of succession. (Para 20)

       (ii) Family Settlement—Suit for partition on basis of family settlement already arrived and recorded amongst parties—Objection raised by defendants respondent for the document was on ground of non-registration and non-payment of stamp duty—Deed did not provide for an rights in present—It provided for division of shares in scheduled property and divisions was to take place on future date—Document could not be held in admission ground that if was not registered.

       Held: Though, the object underlying the settlement is to being about harmony among the parties to it, the legal implication arising out of settlement are not uniform. In some cases, the settlement may bring about transfer or conferment of rights instantly, upon the parties to it, vis a vis movable or immovable properties. If the settlement confers rights upon the individual, vis-a-vis on items of immovable property, which he is not otherwise entitled to under the relevant law of Succession, a transfer comes into existence and thereby the deed of settlement becomes liable to be registered.

       It is no uncommon that settlements provide for arrangement, which would materialize at a future date. In such cases, the manner in which the rights are to be conferred on various parties is defined, and the actual transfer of rights would take place at a future date. The situation is comparable broadly, to the one under a preliminary decree. The rights of the parties vis a vis identified items of property are indicated and actual transfer is a take place at a later point of time i.e., as and. when a final decree is passed; to put it in strict legal r terms, no interest ‘in praesenti’ is created in favour of any party, under settlement of such category. (Paras 22 & 23)

       From the principles laid in above precedents, it becomes clear that a settlement, which does not create any right ‘in presenti’ can not be treated as inadmissible, on the ground that it is not registered. (Para 27)

       (iii) Indian Stamp Act—Section 36—Family Settlement deed—Objection to its admissibility on ground of non-payment of stamp duty—Any objection as to admission of document must be raised before the Court took same on record—Admissibility was a Question which must be decided before the Court admitted document in evidence—Deed was admitted in evidence without objection—Document was liable to be considered.

       Held: This Court held that if no final determination as such has taken place in relation to the payment of stamp duty of a document, the bar under Section 36 of the Indian Stamp Act does not operate. It was observed that mere identification of a document with marking does not amount to admission in evidence. There is no quarrel with that proposition. However, it must be recognized that any objection as to admission of the document must be raised before the Court takes the same on record. If an objection raised in this regard is negative, the aggrieved party has to pursue the remedy further. The aspect of proof and relevancy of a document can be considered at any stage of the trial. In fact, the finding as to proof can be recorded only after the evidence in relation thereto is complete. Admissibility, however is a question, which must be decided before the Court admits the document into evidence. Under no circumstances, that question can be relegated to a later stage. The reason is that if a document is held to be admissible in evidence, the party who intends to rely upon it, may choose to adduce some other evidence, or may approach a superior forum to establish its admissibility. If the trial takes place on the assumption that the document is admissible and if the finding is recorded at the end of the trial that the document is inadmissible, the whole trial receives a serious set back.

       The record in the instant case does not disclose that any serious objection as to the admissibility of Ex.A.6 was either raised or sustained. Therefore, the contention advanced by the learned counsel for the second respondent in this regard cannot be accepted. (Paras 28 & 29)

       (iv) Family Settlement—Suit for partition on basis of deed of family settlement—Whether relied of partition could be claimed only on basis of pre-existing rights and was liable to be defeated deposit deed of settlement? No

       In that case, the Supreme Court held that partition of the property can be only among the parties who have a pre-existing right to a property. In the instant case, the second appellant did not have any pre-existing right de horse Ex.A.6. She has specifically based her claim on that document. Ex.A.6 did not only have the effect of creating aright in the second appellant, but also of re-defining shares or entitlement of the first appellant and respondents 1 to 3 vis-a-vis the property left by Ghouse Khan. A specific issue was framed as to the truth and validity of the document. Even while denying the relief to the appellants, the trial Court held the document to be true and valid. Being a party to the document, the second respondent cannot extricate himself from the consequences that flow out of it. In the absence of Ex.A.6, there would not have been any occasion for the appellants to claim rights, as they did, in relation to the property. Ex.A.6 has created a legal right in the parties and in particular, the second appellant, arid she is certainly entitled to seek partition on the strength of it. Therefore, this question also is answered in favour of the appellants. Before parting with the case, this court places on record, its utmost satisfaction, with the assistance extended by the learned counsel for both the parties.

       For the foregoing reasons, the appeal is allowed and the judgment and decree in O.S.No.13 of 2000 is set aside; and a preliminary decree is passed in terms of Ex.A.6. (Paras 31 & 32)

       Result: Appeal allowed.