“Oral partition must have legal sanctity”

J. Venkatesan

Law Commission recommendation

NEW DELHI: All types of partition including ‘oral partition’ and ‘family arrangement’ must have legal sanctity under the Hindu Succession (Amendment) Act, 2005, the Law Commission has recommended.

At present, Section 6 provides for vesting equal rights in daughters along with sons in coparcenary property but protects partitions (registered or through court decrees) made prior to December 20, 2004 when the amendment Act came into force. The ‘Explanation’ under Section 6 (5) says: “For purposes of this Section, ‘partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act or partition effected by a decree of a court.”

In its recommendation, the Commission says: “The Act has failed to include oral partition and family arrangement which are common and legally accepted modes of division of property under the Hindu Law. Further by the 2005 amendment, oral partition and family arrangement which were effected prior to the enactment would be set at naught.”

Removing anomaly

Commission Chairman A.R. Lakshmanan told The Hindu that the recommendations, to be submitted to the government shortly, would remove an anomaly in the law as only registered partitions or decrees were recognised. In many families, oral partition was made without any document and in the absence of legal sanctity such divisions could not be enforced. To overcome this difficulty, the Commission suggested an amendment to the ‘explanation’ under Section 6 (5) to include oral partition and family arrangement in the definition of partition, he said.

The draft report says: “By virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.”

Family arrangement

“A family arrangement is an agreement between members of the same family, intended, generally and reasonably, to be for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.”

The report, quoting various judgments, says: “The courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold and maintain it. The central idea in the approach made by the courts is that if by consent of parties, the matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.”

Hence, the Commission recommended amending the ‘explanation’ under Section 6 (5) to include oral partition and family arrangement.