Memorandum evidencing a family arrangement already entered into and document prepared as a record of what had been agreed upon, it need not be stamped or registered
Citation
CDJ 2004 MHC 1499
R.Deivanai Ammal (died) and others vs G.Meenakshiammal and others
Head note
Hindu Law - Joint Family Property - Burden of Proof - Nucleus of Joint Family Property - It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value.
Para 15
Hindu Law - Ancestral Property - Self Acquired Property becoming Joint family Property - It is also a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims up to it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts, which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention by his waiving or surrendering his special right in it as separate property. Such intention can be discovered only from his words or from his acts and conduct.
Para 17
Indian Stamp Act - Section 35 - Family Arrangement - The document in our case, namely, Athatchi-Ex.B-28 comes within the legal position No.3 pointed out above. As said earlier, Ex. B-28 is not only a document of family arrangement reduced to writing, but it purports to create, declare/extinquish right, title or interest of the properties of G. In such a circumstance, we hold that it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act respectively. There is no dispute that if a document is in the nature of a memorandum evidencing a family arrangement already entered into and document prepared as a record of what had been agreed upon, it need not be stamped or registered. Considering the recital in the document and categorical statement made therein, we are satisfied that Ex. B-28 cannot be treated as a mere document in the nature of memorandum, but it is a family arrangement in which plaintiff and 1st defendant extinguished their right, title or interest of the immoveable properties of G by accepting cash and jewels as agreed to in Para 2 of the document; accordingly we hold that the said document Ex.B-28 which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in section 35 of the Indian Stamp Act. The learned Subordinate Judge failed to advert these material aspects and committed an error in relying on the said document; accordingly the said conclusion cannot be sustained.
Para 23
Comparative Citations:
2004 (4) CTC 208, 2005 (1) LW 343, 2004 (3) MLJ 507, 2004 AIR(Mad) 529, 2005 (2) LandLR 482,
Para 15
Hindu Law - Ancestral Property - Self Acquired Property becoming Joint family Property - It is also a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims up to it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts, which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention by his waiving or surrendering his special right in it as separate property. Such intention can be discovered only from his words or from his acts and conduct.
Para 17
Indian Stamp Act - Section 35 - Family Arrangement - The document in our case, namely, Athatchi-Ex.B-28 comes within the legal position No.3 pointed out above. As said earlier, Ex. B-28 is not only a document of family arrangement reduced to writing, but it purports to create, declare/extinquish right, title or interest of the properties of G. In such a circumstance, we hold that it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act respectively. There is no dispute that if a document is in the nature of a memorandum evidencing a family arrangement already entered into and document prepared as a record of what had been agreed upon, it need not be stamped or registered. Considering the recital in the document and categorical statement made therein, we are satisfied that Ex. B-28 cannot be treated as a mere document in the nature of memorandum, but it is a family arrangement in which plaintiff and 1st defendant extinguished their right, title or interest of the immoveable properties of G by accepting cash and jewels as agreed to in Para 2 of the document; accordingly we hold that the said document Ex.B-28 which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in section 35 of the Indian Stamp Act. The learned Subordinate Judge failed to advert these material aspects and committed an error in relying on the said document; accordingly the said conclusion cannot be sustained.
Para 23
Comparative Citations:
2004 (4) CTC 208, 2005 (1) LW 343, 2004 (3) MLJ 507, 2004 AIR(Mad) 529, 2005 (2) LandLR 482,
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