Given the patriarchal structure of Indian society, the property rights of women
have always been a contentious issue in our nation. With the enactment of Hindu
Succession (Amendment) Act, 2005, the Indian Parliament officially declared men
and women equal in terms of succession rights. However, since this wasn't always
the case, a number of issues continue to arise with respect to women's right to
property, as well as the nature of such right (whether it is absolute or
The Supreme Court in the recent case of Khushi Ram v. Nawal Singh and
, gave a landmark judgment in this respect, wherein the court made it
clear that a Hindu woman can not only inherit her husband's property, but she
has the absolute right to gift the property to her family from her father's
side, or any other person who, as defined under Hindu Succession Act, can
possibly inherit her property if she dies intestate. The abstract concept of
family settlement is also dealt with wonderfully by the Bench consisting of
Justice Ashok Bhushan and Justice Subhash Reddy.
Facts of the Case
The case originates in 1953, when a certain Sher Singh dies heirless, leaving
behind his widow, Smt. Jagno, who inherited her husband's property in Village Garhi Bajidpur, District Gurgaon, Haryana. Sher Singh had a brother, Bali Ram.
His descendants are the ones who have filed the present appeal in the Supreme
Court. In 1991, Civil Suit no. 317 was filed in Court of Sub-Judge, Gurgaon.
Suit was filed by Nawal Singh and Ors., who claimed a decree of declaration from
the Court, which declared the plaintiffs (in Suit no. 317) as owners of the
property that Smt. Jagno had inherited from her own husband, claiming that Smt.
Jagno had settled the land in their favor in a family settlement.
These plaintiffs (in Suit no. 317) were sons of Smt.Jagno's own brother (i.e.,
her nephews). Smt. Jagno accepted the claims made in Suit no. 317, and
consequently a decree was passed by the trial court that declared the Jagno's
nephews as owners of her property in Garhi Bajidpur that she had inherited form
Civil Suit no. 79 was also filed the same year, by the descendants
of Sher Singh's brother Bali Ram (those are the plaintiff-appellants in the
present case) in the court of Sub-Judge of Gurgaon, praying to declare the Suit
no. 317 as illegal and invalid, as well as to declare them (the descendants of
Bali Ram) as the rightful owners of the land inherited by Smt. Jagno at Garhi
Bajidpur. The defendants in the Suit no. 79 included Smt. Jagno (defendant no.
4) and her nephews (defendant no. 1 to 3), who submitted that Jagno had settled
the land in their favor after entering into a family settlement with them, out
of love and affection. The suit no. 317 was a mere reaffirmation of the said
In suit no. 79, the plaintiffs argued that the decree issued in suit no. 317 was
invalid also because it was unregistered. The trial court however, said that
only a decree that creates new right(s) has to be registered necessarily. Since,
the given decree issued in Suit no. 317 was not creating new rights, but merely
reaffirming existing rights of the defendants (those who are nephews of Smt.
Jagno), it wasn't necessary to register the decree.
It was adjudged as such by
the trial court because Smt. Jagno in her response to suit no. 317 acknowledged
that she had settled the property in favor of her nephews already, in a family
settlement, and hence they had a pre-existing right in the property. Since the
decree needs to be registered only when the decree is creating a new right, the
decree which was issued in the aftermath of Suit no. 317 wasn't required to be
The first appeal was filed by the plaintiff-appellants of the present case in
District Court which was dismissed too. The District Judge said that under
Section 14(1) of the Hindu Succession Act, Smt.Jagno, as the widow, gained
absolute ownership of her husband's share. Also, her nephews were her relatives
and not strangers, and she had surrendered her right in her husband's property
to her nephews out of love and affection. Thus, the District Judge reaffirmed
what the Trial Court had said, previously.
After this, the plaintiffs (descendants of Smt.Jagno's deceased husband's
brother Bali Ram) appealed in the High Court in 2002, whose judgment was
pronounced by the High Court in 2009. In this judgment too, the High Court held
the decree issued in the aftermath of Suit no. 317 to be perfectly valid, and
stated that there was no requirement to get the decree registered under Section
17(1) of the Indian Succession Act, 1908, as the decree merely reaffirmed the
existing rights of the defendants (i.e., nephews of Smt.Jagno), and didn't
create any new rights. After this judgment of High Court dating 2009, the
current appeal has been filed in front of the Supreme Court.
After reading the submissions of the learned counsel for appellants, Shri Ranbir
Singh Yadav, and the learned counsel for respondents, Shri Manoj Swarup, the
Bench framed the following issues:
- Whether it was necessary to get the decree passed after suit no. 317 in
1991 registered under Section 17 of the Indian Registration Act, 1908?
- Whether defendants no. 1 to no. 3, (the nephews of Smt. Jagno) were
strangers with whom Smt. Jagno couldn't enter a family settlement with? Or they
The Judgment was given by a division bench comprising of Justice Ashok Bhushan
and Justice R. Subhash Reddy. The decision was unanimous and penned by Justice
- Judgment in Personam:
The Bench held that the decree dating 19-08-1991,
i.e., the one originating post Suit no. 317, was not registrable, since it
didn't create a new right and merely reaffirmed the existing rights of the
nephews of Smt. Jagno. Further, the property whose ownership was reaffirmed by
the decree dating 19-08-1991 was also the subject matter of the civil suit no.
317, subsequent to which the said decree was issued.
This meant that the decree
didn't fell under Section 17(2)(vi) of the Indian Registration Act. Also, under
Section 15 and Section 16 of the Hindu Succession Act, Smt. Jagno gained
absolute ownership of her deceased husband's property, and as per the provisions
of Section 15(1), her nephews too, can inherit the property, which means she
could enter into a valid family settlement with them.
- Judgment in Rem:
A decree, which deals with property, or reaffirms a
pre-existing right in a property, where the said property is the subject-matter
of the suit post which the consent decree was issued, is not registrable under
Section 17 of the Indian Registration Act, as well as it's exempt from the
exclusionary clause of Section 17(2)(vi) of the Indian Registration Act, 1908.
Also, a widow can enter into a family settlement with her relatives from her own
paternal side. A family settlement can be entered into by people who are all
related to each other, and have a claim or even a semblance of claim on the
property in question, for which the settlement has been entered into.
The Bench makes it clear that there is no dispute regarding the fact that Sher
Singh's property at Gardhi Bajipur is the subject matter of Civil Suit no. 317
dated 19-08-1991, post which the decree was issued which the
plaintiff-appellants (the descendants of Sher Singh's brother Bali Ram) want to
be declared illegal. The argument is that the decree was needed to be registered
under Section 17(1) and Section 17(2)(iv) of the Indian Registration Act, as it
was a decree that created right in favor of the defendants (nephews of Smt.
For this the learned counsel for appellant relied on the case Bhoop
Singh v. Ram Singh Major and Ors
.1, wherein the Supreme Court had observed that
it is the duty of the court to examine whether a new right is created in favor
of one party by the other party that previously held the right over that
property, or not. If a new right is indeed created, and the decree is not a mere
reaffirmation of a pre-existing right, then it has to be registered under
Section 17(1)(b) of the Indian Registration Act 1908.
In the said judgment, the Court also adjudged that a decree will be registrable
compulsorily even if the property over which a new right is created is not a
subject-matter of the suit. In the Bhoop Singh case however, the Court observed
that the decree issued created a new right on the very day on which it was
released, hence it was adjudged to be registrable under Section 17 of the Indian
Registration Act, 1908.
Another case that was cited by the learned counsel for appellants was Mata Deen
v. Madan Lal and Ors
.2, wherein a decree was passed settling the property in
favor of plaintiffs of that suit. However, the decree was unregistered and set
aside, but this didn't help the argument put forth by learned counsel for
appellant in the present case, since it wasn't clear in the Mata Deen case
whether property which was settled through decree was actually the
subject-matter of the Suit or not. This fact, the Bench said, was crucial in the
light of Section 17(2)(iv).
The Bench then discusses the arguments put forth by the learned counsel for
defendants, Shri Manoj Swarup, who relied on the case Som Dev and Ors. v. Rati
Ram and Anr.
3, wherein the Supreme Court adjudged that if the decree was based
on a pre-existing right, then it wasn't necessary to get the decree registered
under Section 17 of the Indian Registration Act.
The Bench then moved on to the
case of K. Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors
.4, where Court has
interpreted the Section 17 in detail. The court explicitly said If a compromise
is entered into in respect of an immovable property, comprising other than that
which was the subject-matter of the suit or the proceeding, the same would
require registration. The said provision was inserted by Act 21 of 1929. The
Court again cited its judgment in Bhoop Singh case to back its judgment in K.
Raghunandan case as well.
Another case, Mohammade Yusuf & Ors. Vs. Rajkumar & Ors.
5 is cited, this one
judgment was actually given jointly by Justice Ashok Bhushan and one other judge
of the Supreme Court only. Herein both the Bhoop Singh and the Som Dev cases
were cited and discussed again.
The court interpreted Section 17 again, and
observed that no decree or order of a court has to be registered compulsorily,
except a decree of compromise that deals with immovable property other than what
is the subject-matter of the suit.
In the Mohammad Yusuf case
decree passed in the suit (dated 4-10-1985), dealt with property which was the
subject matter of the case, hence there was no need to get the decree
registered, as Section 17(2)(vi) wasn't applicable.
The Bench concluded that the decree in suit no. 317, dated 19-08-1991 wasn't registrable as the property was indeed the subject-matter of the suit, and Smt.
Jagno had reaffirmed a pre-existing right of her nephews, as the ownership of
her deceased husband's property was already settled in favour of her nephews by
herself. However, here was the next issue of the case, i.e., whether the
settlement through which the right of her nephews in the property was created
was itself a valid settlement or not.
The learned counsel for plaintiff-appellants argued that the nephews of Smt.
Jagno belonged to a different family, hence there cannot be a family settlement
between them and Smt. Jagno. The Court, relying upon the case of Ram Charan Das
v. Girjanandini Devi and Ors
every party taking benefit under a
family settlement must be related to one another in some way and have a possible
claim to the property or a claim or even a semblance of a claim.
The court also
made it clear, as per the case of Rangasami Gounden v. Nachiaopa Gounden, that
it is not necessary for every party taking benefit from a family settlement to
have a claim on the property in question, as per the rule of law. Instead,
what's necessary is that all the parties to the settlement must be related to
each other via some relation, and have a claim or even a semblance of a claim as
per other grounds, such as love or affection.
The Bench cites another landmark judgment, of Kale and Ors. Vs. Deputy Director
of Consolidation and Ors.
7, wherein the judges discussed the concept of family
in context of family 'settlement' in detail. The aim of such settlement is to
ensure that no bad blood remains within the family relations, and also to ensure
peace of mind for all.
The court cited Kerr Williamson's Kerr on Fraud
wherein the nature of family settlements and compromises made therein was
distinguished from the nature of compromises made in a settlement between
strangers. The objective of family settlements is to protect the members from
long drawn-out litigation battles and to protect the unity and solidarity of the
The unity of a family is necessary for building an egalitarian, strong society,
and in turn a strong nation. For the sake of social justice, it is necessary
that the wealth of a family is distributed equitably and isn't concentrated in
the hands of a few. The term family has to be understood in a wider sense, too,
and would include those relatives who have even a semblance of claim or those
who may have some sort of antecedent title. Thus, courts are expected to make
sure that family disputes, once settled with equitable distribution of property,
aren't disturbed on technical grounds.
Halsbury's Laws of England 9 is cited next, for the same purpose, i.e., to
explain the significance of family settlements. It also emphasizes on the need
for reaching a settlement that is beneficial for the family as a whole and not
to any single party.
The matter is reduced into the following prepositions, in order to make the
- The settlement must be a bona fide one, and aiming to settle the dispute
with equitable distribution of properties amongst the family members
- There should not be any coercion, fraud or undue influence involved in
- A document of settlement would be required to be registered only if it
creates a new right in favour of a party.
- The parties to the settlement must have some claim, or even a possible
claim in the property in question.
- Even if a party that participates in a settlements and benefits from it
has no antecedent title to the property it so received, the court will
acknowledge that there was indeed an antecedent title and accept the
settlement as valid.
- Even disputes which don't involve a legal claim which are settled by
family arrangements, such arrangement would be binding on the parties that
participated in the arrangement.
The Bench further cited another paragraph from the Kale and Ors. case, wherein
it made clear that the court will take a very liberal approach in case of a
family settlement, to make sure that once a settlement has been reached, the
dispute isn't revived on frivolous grounds. More importantly, the court points
out that in the Kale case, the plaintiff entered into an agreement with his
mother's two sisters, who weren't legal heirs as per the law (U.P. Tenancy Act,
1939 in this case). Still the family arrangement was upheld by the court as
valid, given it was a bona fide settlement where property was distributed
between Kale and his mother's sisters equitably.
The Court then further examine Section 15(1) of the Hindu Succession Act, 1956,
which lists down upon the relatives who are possible heirs to a Hindu female's
property. The list included the heirs of the Hindu female's father (which would
include the Hindu female's brothers and the children of brothers) as well.
point made it clear that nephews of a Hindu female can very well be possible
heirs to her property, and in the present case too it would be so. Thus, being
absolute owner of her husband's property, Smt. Jagno could legally grant the
ownership of said property in favour of her brother's sons. Thus, the Bench
concluded that the settlement that Smt. Jagno has entered into prior to the
issuing of the decree dated 19-08-1991 was perfectly valid.
The judgment deals with one of the most significant issues with respect of
property rights of women in India. Section 15 of the Hindu Succession Act, 1956
was a remarkable and radically progressive provision that specified who can
inherit the property of a Hindu woman if she dies intestate.
The preference is as follows:
- It shall be inherited by her children (both sons and daughters) and her
husband and even her grand children if the parents of those grand-children
- The next in line are the heirs of her husband, i.e., the siblings of
husband and the children of those siblings.
- Next are the parents of the woman.
- Followed by the heirs of father (in the present case too, it's the heirs
of the father as they are the sons of Smt. Jagno's brother)
- Finally, the heirs of mother, i.e., maternal side relatives of the woman
whose property is to be dissolved.
In the present case Smt. Jagno had entered into a family settlement with her
nephews who are 4th on the preference hierarchy of dissolution of a Hindu
woman's estate. Smt. Jagno was alive when her property was transferred to her
nephews, and so the provision in Section 15 wouldn't be directly applicable.
However, the Court, while explaining the unique nature of family settlements and
how they are different from normal settlements (between strangers or non-family
members), made it clear that said settlements can be entered into with those
people who have even a semblance of claim on the property in question.
Herein, there was definitely a possible claim on the part of defendants (nephews
of Smt.Jagno) over Jagno's property that she had inherited. Even though they
are somewhat down the preference hierarchy as described in Section 15, it is
clear that they had a semblance of claim over the property in question.
Thus, Jagno entering into a family settlement with them and relinquishing her own
right over that property in favour of her nephews was also perfectly valid. The
Bench also made it clear that Jagno has absolute (and not limited) right over
her deceased husband's property, hence she was perfectly eligible of
transferring the ownership of the said property to her nephews via a family
settlement. This was a remarkable point which was technically reinforced by this
The concept of family settlement was also discussed in detail. It is also
remarkable how even though the legal philosophers cited by the Bench are
Europeans, there ideas are incredibly relevant in the Indian context too. It can
be said that in every society where family constitutes the most basic group of
human interaction, these principles are significant. Halsbury's Laws of England
makes it clear that a family arrangement's aim is to ensure that a property that
is the cause of dispute is compromised in a way that benefits all members, or
its aim is to make sure that the family members don't remain stuck in litigation
or legal conflict, and instead are able to achieve peace and prosperity and
protect the honour of the family 10. The Bench also specifies that such an
arrangement can also be entered into by only those people who are related to
each other. That means, every person entering the settlement has to be related
to every other person.
Here the Bench specified however that it is not necessary that only those
relatives who have a direct legal claim on the property in question can enter
into such agreement. Given that the purpose of a family settlement is to ensure
peace and prosperity of the said family, it is only logical to allow women
members as well to surrender the ownership of her property in favour of the
relatives from her own family, i.e., her parents and their heirs.
settlements have to be considered as a means of ensuring peace for the entire
families, and herein they differ from normal settlements between strangers. In a
settlement between strangers, the issue can be reopened and legal conflict can
be dragged on without much impact on the society as a whole.
In case of family
settlements however, the longer the legal conflict continues, the more damage it
would do to the social fabric, and indirectly to the national community, the
Bench cited Halsbury while making its point, although it can be considered as a
bit exaggerated, the main point was still made clear, i.e., the family is an
important organization that needs to be kept out of conflict as much as possible
for the relative stability of the society.
The Court also gave (or rather we can say, reiterated) the rules regarding
registration of orders and decree issued by courts. The Indian Registration Act,
1908, was enacted for the purpose of conserving titles and evidence. The
legislation regulates the registering of documents for the same purpose.
Specifically, Section 17 of the Act was discussed in this case.
lists down the documents that have to be compulsorily registered if the
properties which these documents relate to is in a district in which the
legislation came into force. These documents included non-testamentary document
that seek to create a right in an immovable property of more than INR 100 in
value. This is mentioned, along with other such documents that have to be
necessarily registered under the said section 11.
Such documents include:
- Instruments that relate to transfer of immovable properties as gifts.
- Non-testamentary instruments that create a new title or right to an
immovable property worth more than INR 100.
- Non-testamentary instruments which acknowledge the consideration paid in
exchange of creation of a right or title to immovable property
- Lease of immovable property from year to year.
- Non-testamentary instruments which transfer or assign any decree or
order of a court which performs the action that is mentioned in point no. 2
There is a proviso that exempts any leases whose terms don't exceed five years
and the annual rent describes in which doesn't exceeds INR 50, from the
provisions of Section 17 sub-section 1 of this act.
In the given case, the counsel for appellant argued that by the decree dated
19-08-1991, the right to the property that Smt. Jagno inherited from her husband
was created in favour of Jagno's nephews. To back this, appellant counsel tried
to argue that the family settlement that Jagno and her nephews had entered into
previously was invalid, hence no right was created until the decree in Civil
suit no. 317 was issued by court. Since this decree was creating a new right, it
was required to be registered necessarily. The bench of course made it clear
that the family settlement was valid (as explained earlier) and no new right was
created. Hence, there was no requirement to get the decree registered.
Conclusively, the court gave a landmark judgment where it made clear its
approach towards solving family related disputes, and its commitment to ensure
peace and prosperity of the family structure, and indirectly, that of the whole
society. The technicalities relating to registration of court decree has been
addressed as well, although this was more of a reiteration of the previous
judgments regarding this issue.
- Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5 SCC 709
- Civil Appeal No.890 of 2008 – Mata Deen Vs. Madan Lal & Ors.
- Som Dev and Ors. Vs. Rati Ram and Anr., (2006) 10 SCC 788
- K. Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors., (2008) 13 SCC
- Mohammade Yusuf & Ors. Vs. Rajkumar & Ors., 2020(3) SCALE 146
- Ram Charan Das Vs. Girjanandini Devi and Ors., 1965 (3) SCR 841
- Kale and Ors. Vs. Deputy Director of Consolidation and Ors., (1976) 3
- Kerr on Fraud at p. 364
- Halsbury's Laws of England
- The Entire Law Relating To Family Settlements Explained – Articles (itatonline.org)
Sec 17 of Indian Registration Act, 1908