Unregistered Family Settlement Still Binding if Acted Upon – Bombay High Court

Grandfather Cannot Sign Partition for Minor When Mother Is Alive - Bombay High Court delivered a landmark verdict in Second Appeal , setting aside concurrent findings of the Trial Court and First Appellate Court, and ruling in favour of plaintiffs who sought partition of ancestral property.

The core of the dispute revolved around a 1957 registered partition deed executed by a grandfather (Dada) on behalf of his minor grandson, Shamgonda, while the boy's natural guardian—his mother—was alive. The Court found this act unauthorised and legally untenable, stating:

"Under no circumstances could Dada, who was the paternal grandfather, act as natural guardian of plaintiff no. 1. The mother was the only natural guardian."

This ruling paves the way for a fresh and equal division of ancestral properties, nearly seven decades after the original arrangement, based on a later unregistered family settlement in 1974 that the Court held to be valid and binding.

Heirs Challenge Old Partition, Assert Right to Full Share

The plaintiffs, heirs of Shamgonda (the adopted son of Dada’s brother), filed a suit for partition and separate possession of ancestral properties listed in Schedules A and B, claiming a half-share, alleging that the earlier 1957 deed was both invalid and never implemented.

They relied on a subsequent memorandum of understanding (MOU) dated 16th December 1974, signed by key family members including defendants, which recognized their 50% share. However, both the Trial Court (1985) and the Appellate Court (1994) rejected the claim, upholding the validity of the earlier registered deed and dismissing the suit as barred by limitation.

1957 Deed Invalid as Grandfather Lacked Legal Authority

The central legal issue was the validity of a partition executed by a grandfather on behalf of a minor, when the minor's mother—his natural guardian under Hindu law—was alive.

Justice Gauri Godse rejected the claim that Dada acted as Karta of the family, observing:

“Dada did not sign the document in the capacity of Karta, but he signed as the natural guardian of Shamgonda. When Shamgonda’s mother... was alive, there was no reason for Dada... to act as natural guardian.”

Referring to Supreme Court precedents in Madhegowda v. Ankegowda and Ganayya v. Radhabai, the Court reaffirmed that only a natural guardian (father, then mother) can legally act on behalf of a minor’s property interests:

“There is in law nothing like a de facto guardian... the statute recognises only a natural guardian or one appointed by court.”

Unregistered 1974 Family Settlement Was Valid and Acted Upon

The defendants contended that the 1974 agreement, being unregistered, could not be relied upon. The Court disagreed, holding:

“Only because it is not registered, it cannot be discarded. The contents of the document only record the agreement between the parties about the division of the shares.”

It was noted that the 1974 MOU was signed by all major family members, including defendants 1, 2, 3, 5 and 6, and expressly acknowledged plaintiff’s half-share. The agreement had been partially implemented, and its validity was confirmed by conduct, including the submission of mutation applications and revenue entries based on it.

Partition Was Never Completed by Metes and Bounds

Despite the 1957 document, the Court held that:

“There was never any partition effected by metes and bounds. The theory of partition and separate possession pleaded by defendants nos. 1 to 3 is not proved.”

The Court emphasized that mere existence of a partition deed does not sever joint family status, especially when:

• The deed is not acted upon,

• Revenue records remain joint,

• There’s no evidence of exclusive possession,

• And parties continue to use HUF funds for purchases.

Limitation Argument Rejected: Cause of Action Arose in 1975

The defendants argued that the suit, filed in 1977, was time-barred since the 1957 deed was never challenged within the limitation period. The Court firmly rejected this contention:

“The suit was not filed to challenge the document dated 2nd February 1957… there is no material on record to show that this document was ever acted upon.”

The actual cause of action, the Court held, arose only when the defendants attempted to alienate the joint property in 1975, thereby triggering the plaintiffs’ right to seek partition.

Hence, the suit was held to be within the limitation period under Article 110 of the Limitation Act, 1963.

Property in Defendants’ Names Part of HUF

The Court found no merit in the defendants' argument that lands and houses acquired in their names were self-acquired properties. Observing that:

“There is no material on record to indicate any separate source of income of defendants nos.1 and 3,”

The Court held that the properties were acquired from the joint family nucleus, and thus subject to partition.

After detailed analysis, the Court allowed the appeal and decreed as follows:

“The respective heirs and legal representatives of Plaintiff No. 1 and Defendant No. 4... and Plaintiff No. 2 are jointly entitled to ½ share and separate possession.”
“The respective heirs and legal representatives of Defendants Nos. 1, 5 and 6... are jointly entitled to ½ share and separate possession.”

The decree is to be executed:

• By the Collector under Section 54 CPC for lands assessed to revenue.

• By the Civil Court for remaining properties.

Court Reasserts Rights of Legal Heirs and the Integrity of Hindu Minority Law

This judgment reiterates a critical point in Hindu family law—any partition involving a minor must strictly comply with legal guardianship provisions. A registered document alone is not sacrosanct when it is executed by an unauthorised person and not acted upon.

“It is the duty of the Court to protect and safeguard the interests of minors... the onus of proving fairness of a partition lies on the party supporting it.” – (Ratnam Chettiar v. S.M. Kuppuswami Chettiar)

By voiding the 1957 deed and accepting the 1974 family settlement despite its lack of registration, the Bombay High Court has strengthened the principle that substance prevails over form in family arrangements—what matters is intention, conduct, and fairness.

Date of Decision: 14th August 2025