Deepti Bajpai's Profile and details
Currently pursuing, BA, LLB (Hons), IV Year, Dr. Ram Manohar Lohiya National Law University, Lucknow
Family Arrangements In India
The Indian courts and judiciary is no stranger to family disputes. Majority of the cases relate to disputes with regards to family property and its division. Thus, in order to solve such disputes the Indian courts have taken a very liberal and broad view with regards to the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by valid consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds. Court described ‘family arrangement’ as a transaction between members of the same family for the benefit of the family so as to preserve the property, peace, and security of the family, avoidance of family dispute and litigation and for saving the honor of family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what title is.
Thus, oral partition or family arrangement is an extremely valuable power whereby the peace, happiness and welfare of a family are secured and litigation is avoided. It is specifically helpful in the case of illiterate members or not well off members of a family or who have no means to bear expenditure of legal process/advice. By family arrangements it is intended to set at rest competing claims or to settle claims finally amongst various members of the family to secure peace and amity.
If the true character of the transaction appears to the courts to be a settlement between the several members of the family of their disputes with each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively, the court will effectuate it as a family settlement. It will confer a new distinct title on each other, that the parties themselves seem to have regarded in the arrangement, and it is held that it is the duty of the courts to uphold and give full effect to such an arrangement.
In S. Shanmugam Pillai v. K. Shanmugam Pillai the entire issue regarding family arrangements was discussed and the Court observed as follows:
“If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.”
The courts have leaned strongly 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. In the case of Sahu Madho Das the judges Vivian Bose Jagannadhadas and B.P. Sinha relied on Clifton v. Cockburn, and William v. William. As observed in various cases the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.
Definition of family
The word 'family' in the content is not to be under stood in a narrow sense of being a group of persons who are recognized in law as having a right of succession or having a claim to a share in the property in dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.
In Krishna Biharilal v. Gulabchand it was pointed out that the word 'family' had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The word "family" in the context of a family arrangement 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.
Thus, 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 for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.
Special equity applicable to family arrangements:
The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus;
“The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend.”
In Maturi Pullaiah and Another v. Maturi Narasimham the Court held that conflict of legal claims in present or in future is generally not necessarily a condition for the validity of family arrangements. Even a bona fide dispute present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it.
Part II- The Object of Family Arrangement
Various courts have referred to Kale v. Deputy Director of Consolidation (“Kale”) to highlight the object of such arrangements to protect the family from long drawn litigation perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. The courts have held that in the present times when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed forever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country.
The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
Part III: Essentials of Family Arrangements
The Kale case along with others have referred to Halsbury's Laws of England, which have the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
“A family arrangement is an agreement between members of the same family, intended to be generally and reasonably 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 arrangement shall be voluntary and should not be involve any fraud, undue influence or coercion. The agreement may necessarily not be a written one. It may very well be implied from a long course of negotiations. However, while dealing with such negotiations, it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied or can easily be implied.
These family arrangements are governed by principles which are not applicable to dealings between strangers for obvious reasons. One cannot equate agreements between strangers to agreements between members of the same family having rights in common ancestral property inherited from their forefathers. In the light of the sensitive nature of such arrangemnets, courts when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view with respect to the disputekeeping in mind the best interest of the family members. Not just this, the judges also give regards to considerations to the fact that case may also deal with transactions between persons not members of the same family. However, in most scenarios this factor would not be taken into account as any property transferred to non-members is done through contracts other than family arrangements. Thus, it is pertinent to note that usually the matters which would be fatal to the validity of similar transactions between strangers are not objections and do not usually affect the binding effect of family arrangements. This factor alone highlights the legal sanctity and validity attached to the arrangements.
Part IV: Validity of The Arrangements
As discussed above, only a few factors affect the validity of family arrangements. In Maturi Pullaiah and Anr.v. Maturi Narasimham it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the court. Similarly it was also held by the court that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. The Court further held that the compromise is based on the assumption that the members to the agreement already have a title to the property and the agreement does nothing more acknowledging the same title. It clearly defines the title of each member and the portions allotted to each of them. This is the reason why no conveyance is required in such an arrangement as it is already assumed that the person receiving the property already had a right over it.
The said notion can be used by the courts to lean in favour of family arrangements that bring about harmony in a family and do justice for all members involved. The peaceful settlement also avoids in anticipation, future disputes which might lead to distortion of peace. The only exception to such a circumstance is fraudulent conduct on the part of any members which can disrupt the whole process.
However, 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 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 a consideration is present.
Part V: Registration Requirement
As mentioned before, 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 f in what properties the parties possess.
In Mahadeikunwar v. Padarath Chaube it was held that there may be a family settlement in which there is some transfer of property as well along with the settlement of dispute, which to the extent of such transfer would stand on a different footing. By and large, a document styled as family arrangement is not immune from registration. However, it is a question of fact where a family arrangement requires compulsory registration or not, to be determined in each case based on the contents and interpretation of the document and the surrounding circumstances of the case, by taking into consideration whether the document in question itself creates title or it only acknowledges antecedent title to the property. If the family arrangement involved a declaration of right, then, it requires registration.
In Ramgopal v. Tulshi Ram has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary. In this connection the full bench adumbrated the following propositions in answering the reference:
"We would, therefore return the reference with a statement of the following general propositions:
With reference to the first question:
(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 is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a document" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a 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.
(6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document."
Similarly in Sitala Baksh Singh and others v. Jang Bahadur Singh it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue Court did not require registration. In various cases, it has been assumed that there was a bona fide dispute between the parties which was eventually composed each party recognizing an antecedent title in the other. In such circumstances, the courts are of the opinion that there was no need for registration. In the opinions of the courts, it has no purpose to create, assign, limit, extinguish or declare within the meaning of these expressions as used in S. 17(1)(b) of the Registration Act. It is merely a recital of fact by which the court is informed that the parties have come to an arrangement. Thus, if the antecedent title to property already existed and the courts are merely informed of such title, the same would not require registration.
Part VI: Taxation Aspect of Family Arrangements
Transfer under Section 2(47) and Section 45(4) of the Income-tax Act, 1961
The courts have held that under a family arrangement or partition, any property transferred cannot be taxed under capital gains. Such giving away of property under a scheme of family arrangement cannot be construed as 'transfer' for capital gain purposes. Therefore, there is no liability to pay capital gain tax under Section 45 of the Income-tax Act, 1961.
The High Court in Commissioner of Gift Tax( CGT) v. K N Madhusudan, has held that the word ‘transfer’ in section 45 does not include partition or family settlement as defined in the Income Tax Act. The facts recorded in the family settlement are akin to a partition and hence cannot be taxed. Family members under the scheme of arrangement have an anterior title to the property which is a subject matter of partition or a family arrangement. Thus, under family settlement there is an adjustment of shares, crystallization of respective rights in the family properties and therefore it cannot be construed as a transfer in under the Taxing statutes. Thus, as there is no transfer in the eyes of law, there is no capital gain and therefore no capital gain tax can be levied on such transfer.
In the case of Commissioner of Income Tax (CIT)v. A.N. Naik Associates by the Memorandum of Family Settlement it was decided by the parties thereto that the business of six firms as set out therein would be distributed in terms of the family settlement, as decided by the parties concerning various matters relating to business and assets thereto be divided separately and partitioned. Under the terms and condition of the settlement, it was set out that the assets proposed to be divided in partition under the settlement were held by the firms and the individual partners. With reference to the firms, the manner in which the firms were to be reconstituted by retirement and admission of new partners was also set out. Based on these documents and subsequent deeds of retirement of Partnership an order of the assessment was made holding that the respondents was liable for tax on capital gains. The Tribunal held that the business continued to be run and there was no dissolution of the firm and consequently Sec. 45(4) of the Act was not attracted.
Gift under Section 2(xii) and Section 4(1) of the Gift Tax Act, 1958
In the case of CGT v. D. Nagrirathinam, the assessee was the owner of a half share in the building which consisted of ground floor and first floor. She was the owner of residential house and a building. Pursuant to the dispute between the assessee and her son, at the intervention of the Panchayatdars, the assessee executed the deed of partition with a view to settle the dispute with her son. As per the deed of partition, one of the properties was absolutely allotted to the son which was belonging to the assessee. Therefore, the gift tax assessment was made in respect of the value of the said property allotted to the son. The Tribunal held that only to solve the family dispute and bring harmony in the family the transactions were entered into and there was a family arrangement which did not constitute gift within the meaning of Sec. 2(xii) and 4(1)(a). The said decision of the Tribunal was upheld by the Court on the ground that the family members intended to maintain peace in the family and therefore, the family arrangement was arrived at which was bona fide one. Hence, the tribunal decided that the transaction did not constitute gift within the meaning of Sec. 2(xii) and 4(1)(a) of the Gift-tax Act.
Following the Supreme Court decision the case of Sahu Madho Das v. Mukand Ram, Madras High Court held in C.G.T. v. Pappathi Anni that an agreement between widowed mother and son for division of property to be family arrangement not attracting gift tax as the parties genuinely and bonafide, thought that both mother and son had right to half share in the property left behind by the father and that allotment of property to son or the mother was not without any consideration.
The family settlement is the best medium of planning the distribution of the assets in such a way that assets may pass to those who may have to bear the least possible tax. As already stated the division of assets through family settlement is not a transfer, therefore it neither attracts capital gain tax nor gift tax - CIT v. A.L. Ramanathan. The clubbing provisions of section 64 of the Income Tax Act are also not attracted to the family settlement. But one should be careful and cautious. The family settlement should be bonafide, otherwise it may fail. In a case before the Madhya Pradesh High Court in S.R. Kalani (HUF) v. C.I.T., a partnership was formed by family arrangement giving a lump sum amount to the mother under family settlement. On the basis thereof, she was admitted as a partner in the firm with the Karta of HUF, her only son. Earlier, it was claimed as a partition which was rejected and the family was assessed in the status of HUF as before. Later on the plea of partition was given up and it was claimed that the mother was given a sum of rupees one lakh in lieu of her right to maintenance under the family arrangement. It was found on the facts that the mother did not withdraw any amount for her maintenance. The story of quarrel with her daughter-in-law was also found incorrect because she made a gift of her jewellery to the daughter-in-law after the alleged family arrangement. Thus, the family arrangement was not found to be bonafide and was rejected by the Court.
Shares transferred pursuant to a gift
In the case of ACIT v. Bilakhia Holdings P. Ltd. the court held that the shares that are transferred pursuant to a family arrangement is for a consideration and is not voluntary. Thus, it cannot be considered to be a gift. In this case, three brothers of the same family by a deed agreed to transfer shares of the companies held by the them to Bilakhia Holdings Limited( “taxpayer”) to consolidate holdings and avoid any further disputes. However, the three brothers were also the directors of the taxpayers not just this, they also held equal stake in the taxpayer. The brothers then transferred loans worth millions to the company which were given to them by others. The company recorded such loans by credit to the capital account reserves. The taxpayer then sold a few is such shares received under the settlement deed. For calculating the capital gains on shares of these shares , the company took the shares as gifts and took the cost and holding period of the earlier owners and offered long term capital gains to them. The company then showed the gain on the sale of shares to be transferred to capital reserved instead of going through profit and lioss accounts.
The authorities then taxed this gain on sale of shares as short term capital gains and said that the loans were income. The officers also made the addition of gains in calculating book of profits (“MAT Computation”) under Section 115JB of the Income Tax Act, 1961. In appeal, the authorities overruled the addition of loans and held that gain by sale of shares was a long term capital gain. However, in the MAT computation, the authorities in appeal confirmed the addition of the gain.
When the case came up before the tribunal the company contended that there was no requirement of natural love, care and affection for a gift to exist as defined under section 122 in Transfer of Property Act, 1882. The company argued that the consideration in Section 122 is something valuable and capable of being expressed in money or money’s worth. In the case of the taxpayer, it could not be denied that the no consideration in money was paid by the taxpayer. The family arrangement was entered into by the three brothers by their own free will. Consequently, the shares were transferred to the company. Hence, the binding nature of such arrangements cannot deem the transfer to be voluntary. The company also contended that the members who had transferred their shares have reflected it as gifts in their accounts. Thus, shares received as a gift are not investment and hence gains on sale of these shares cannot be put through profit and loss account.
Tax department contended that the company cannot show natural love and care which is a prerequisite for a receivingany valuable object as gift. The consideration for such a transfer was to the parties was to attain peace and settle disputes. The transfer could not be said to be one without consideration. Such transfer was also not voluntary as it was under a binding agreement. Therefore as the transfer did not satisfy both requirements of gifts, it could not be held as a gift under law. The receipt of shares by the company was nothing but buying of shares on lower prices.
The Tribunal held that family arrangements were undoubtedly binding and such transfers under agreements cannot be regarded as one being without consideration. The arrangement was done in order to consolidate the holdings of the three brothers and hence, the consideration of transfer can be measured in money or money’s worth. Family disputes being settled in monetary terms by using such arrangements leads to the result that said transfer was with consideration and the transfer was not voluntary as the agreements is binding and enforceable on all parties.No tax avoidance in garb of arrangements:
However, family arrangements cannot be entered into just to avoid taxation on transfer of property.
In the case of Bansari Lal Aggarwal v. CGT , the High Court refused to accept the family arrangement arrived at between the husband on the one side and wife & four son on the other as collusive one effected with a view to avoid payment of tax. In the said case, property owned by the assessee was an individual property. He had a wife and four sons had only lent money to him to buy the said property. The assessing officer held that by the mere creation of an antecedent title, claim or interest of the five persons in the individual property of husband and consequently, the family arrangement decree obtained by the parties concerned shall be set aside on the ground of being collusive, obtained with a view to avoid payment of tax.
As discussed above, the courts have clearly appreciated the sanctity attached to a family arrangement arrived at amicably by various members of the family. This practice not only restores peace in the family but also avoid any future confrontations between the members of the same family causing disruptions in the peaceful familial ties.
The only few factors that members need to consider for a valid settlement are listed below:
Bona fide settlement:
The members must ensure that family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The agreement shall ensure that rights of each member has been accommodated and appreciated. Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
Essentials of the valid contract:
The said agreement needs to adhere to the basic principles of contract law. A family arrangement cannot be arrived at forcefully. The said agreement must be voluntary and should not be induced by fraud, coercion or undue influence. Such agreement will be voidable at the option of the promisee.
Requirements of registration:
The family arrangement may be even oral in which case no registration is necessary. It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable.
Antecedent title to property:
The members who may be parties to the family arrangement must have some antecedent title, claim or interest in the property 'It which is acknowledged by the parties to the settlement thateven if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts shallfind no difficulty in giving assent to the same.
To conclude, amicable, bona fide and binding family settlements are better to solve disputes and benefit all members by avoiding publicly long drawn messy court battles. It is thus definitely a more harmonious way to resolve disputes. However, sometimes all family members may not be able to reach a consensus on an agreement as to their shares in the property. In such circumstances, legal recourse is the only way out.
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Name of the Co-Authors: Shaurya Joshi, Deepti Bajpai
# Shaurya Joshi: Currently pursuing, BA, LLB (Hons), V Year, Dr. Ram Manohar Lohiya National Law University, Lucknow
# Deepti Bajpai: Currently pursuing, BA, LLB (Hons), V Year, Dr. Ram Manohar Lohiya National Law University, Lucknow