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Deed of Family Arrangement & Law

June 7, 2020

Best way to family dispute settlement is to record the terms by way of Deed of Family Arrangement or Family Settlement. What is Family Settlement? What does law say? Whether it requires registration? It attracts Stamp Duty? Now we will take up first Question What is Family Settlement? In the matter of Sahu Madho Das And Others vs Pandit Mukand Ram And Another 1955 AIR 481= 1955 SCR (2) 22 Meaning of Family Arrangement was expressed and interpreted the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. In Ram Charan Das vs Girija Nandini Devi 1966 AIR(SC) 323 it was held that, Courts give effect to a Family Settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute In Tek Bahadur Bhujil  vs Debi Singh Bhujil 1966 AIR(SC) 292   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. It is only when the parties reduce the Family Arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess  Does it require Registration? Ramgopal vs Tulshi Ram And Anr. AIR 1928 All 641 Following Principles were laid down: (1) A family arrangement can be made orally. (2) If made orally, there being no document, no question of registration arises.  (3) If though it could have been made orally, it was in fact reduced to the form of a “document”, registration (when the value […]

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Can there be Assignment of Parenting Rights, whether it is legal? Can it be done by an Agreement?

July 13, 2018

A very unique query I came across a query, “ Can there be an Agreement between Hindu parents of a minor girl child assigning Guardianship Rights to mother?” The guardian-de-jure or assignment of parenting rights is not a new concept in India. It dates back to more than 3000 years ago in the epic period of Mahabharata. Krishna was born to Vasudev and Devki but was handed over to Nandji and was brought up by Jashodaji. This is very amazing query. The reason of handing over parenting right is not so easy, as it involves ups and downs of emotions. The reason may be couple going abroad for employment, divorce or understanding between couple if husband is having second wife to avoid court proceedings, wife consents silently to Second marriage and allows adultery or Bigamy for sake of child and custody given to her absolutely. In India we have seen in public life with a very prominent Bollywood couple. Any act of adoption, matrimonial settlement, custody affects the child’s right to succession. It is therefore very much necessary to understand various provisions of law. Government of India had set up a Commission in order to emphasize the “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters, the Law Commission of India decided to study the issue of adopting a shared parenting system in India of a Single Retired Judge Shri A.P.Shah. Commission after several rounds of discussions and deliberations, the views of the Commission centered around (i) strengthening the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making; (ii) providing for equal legal status of both parents with respect to guardianship and custody; (iii) providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and (iv) providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child. This report of the Law Commission reviewed the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and recommends legislative amendments to achieve the following objectives: Strengthen the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making Provide for equal legal status of both parents with respect to guardianship and custody Provide detailed guidelines to help decision makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations. Provide for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child. What is not covered in this report is when child becomes orphan due to accident or any other reason child’s custody whom to be given. Who can give away child in adoption in such cases? As the same is governed by Guardian and Wards Act,1890. In India Hindu children are govern by the Hindu Minority and Guardianship Act, 1956. It is an Act to […]

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