RAM PAL Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is directed against the order dated llth August, 1971 pissed by the Deputy Director of Consolidation, Jaunpur in a revision arising out of proceedings under Section 9-A (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act ). In the present case the dispute relates to the land of Khatas Nos. 71-B and 71-C situate in village Patti Dayal, Pargana Rari. district Jaunpur, which were recorded in the name of the petitioners Ram Pal, Kedar sons of Sukhdeo and Mangru son of Bharos. The contesting opposite parties Nos. 4 to 7 namely Rai Nath, Kashi Nath sons of Triloki, Dukhharan son of Rameshwar and Sita Ram son of Sarju filed objection under Section 9-A (2) of the Act claiming to be sole tenant-holder of the land of the aforesaid holdings. They further asserted that the names of the petitioners were wrongly recorded on the basis of the family settlement said to have been arrived at on 4th May, 1953. They further contended that the petitioners had no title or share in the land in dispute and the said family settlement was fraudulent and fictitious and was not acted upon and the members of the family had not joined the said family settlement. It was also asserted that the opposite party No. 5 Kashi Nath was ignorant about the alleged family settlement and he had not joined and as such it is not binding upon him. The objection was contested by the petitioners who asserted that the land in dispute was ancestral joint family holding and that they had share in it. They further asserted that in the family settlement which was made on 4th May, 1953 they were given land of Khata No. 71-B and 71-C and they were in possession ever since then. They further contended that their names were also mutated over the land in question on the basis of the said family settlement and the land of entire Khata No. 71-A which had fallen in the share of the opposite parties Nos. 4 to 7 stood recorded in their names on its basis. It was also asserted that Kashi Nath opposite party no. 5 had filed suit No. 128 of 1959 in the Civil Court for the cancellation of the aforesaid deed of family settlement. This suit was dismissed in default on 2nd September, 1960 and no action was taken by the opposite party No. 4 to get the said suit restored nor he filed any suit subsequently even attaining his majority The petitioner also contended that the opposite party No. 5 has also received land in the said family settlement along with his real brother Raj Nath. The Consolidation Folder after taking evidence of the parties dismissed the objection filed by opposite parties Nos. 4 to 7 by holding that the family settlement was bona fide and genuine and it was acted upon. He further recorded a finding that the petitioners are in exclusive possession over the land in dispute. Aggrieved by the said order, the contesting opposite parties filed appeal which too was dismissed by the Settlement Officer (Consolidation ). The Settlement Officer (Consolidation) endorsed the finding recorded by the Consolidation Officer on the aforesaid material question. The opposite parties Nos. 4 to 7 thereupon filed revision under Section 48 of the said Act which was allowed by the Deputy Director of Consolidation vide order dated 11-8-1971. The Deputy Director of Con solidation held that the land in dispute is not established to be ancestral property as it has not been coming down in the identical form from the time of the common ancestor. He rejected the aforesaid family settlement merely on the ground that no such family settlement could be arrived at in respect of the land in dispute as it was Sirdari land and could not be transferred under provision of the U. P. Z. A and L. R. Act. The genuineness of the registered family settlement was not doubted by the Deputy Director of Consolidation nor he recorded any such finding to the effect that no such family settlement was envied at by the parties. He rejected the family settlement merely on the ground that the land being Sirdari holding could not be transferred by family settlement and with these findings he allowed the objection filed by the opposite parties Nos. 4 to 7 and held them to be the sole tenure holder of the land of the disputed holding of Khata No. 71-B and 71-C and ordered their names to be recorded after expunging the names of the petitioners. The petitioners have challenged this order passed by the Deputy Director of Consolidation in this writ petition. I have heard the learned counsel for the parties and perused the averments contained in the writ petition as well as in the counter-affidavit and the rejoinder affidavit. I have also gone through the impugned orders pissed by the Deputy Director of Consolidation very carefully. The crucial question for consideration in the present writ petition is whether in respect of the Sirdari land a family settlement could be arrived at between the parties or not. The learned counsel for the contesting opposite parties contended that since Sirdari land cannot be transferred under the provisions of the U. P. Z. A. and L. R. Act as such by the deed of the family settlement the parties could not effect partition of the Sirdari land. The learned counsel further contended that the family settlement would amount to transfer in respect of Sirdari land, which is forbidden by law. I am unable to agree with this contention. In Jokhan v. Ramdeo and others, A,ir, 1967 Alld. 212. Hon'ble Gangeshwar Prasad, J. considered the effect of the compromise and the family settlement, holding in para 9 that; ''the question that has really to be determined in the instant case is whether the compromise in question was a valid and binding family settlement and can be upheld as such. Certainly in determining that question it has to be seen in the light of the pleadings, evidence and circumstances, whether what the parties really intended was a transfer of some of the plots and they resorted to the device of giving a false appearance to the transaction in order to circumvent the law and to save it from the statutory prohibition against transfer, if such was the case the compromise was a mere camouflage and it cannot be regarded as a transaction entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. But otherwise it cannot be treated as a transfer merely on the basis that on an investiga tion of the antecedent rights of the parties it is established that the property in dispute belonged entirely to one of them only. Of course the compromise will have to satisfy the conditions of a valid family settlement, even if it did not amount to a transfer before it can be held to be binding. " It has thus to be seen whether in the present case by the aforesaid registered deed of family settlement the parties had intended to transfer the plots and they had resorted to this device by giving appearance to the transaction to be a family settlement. No such finding has been recorded by the Deputy Director of Consolidation that the parties really intended to effect the transfer of some of the plots of the disputed holding, which was the land of Sirdari tenure. The genuineness of the deed of family settlement had also not been doubted. The names of the parties were recorded over the land on the basis of the said family settlement. In the circumstances, it cannot be said that the aforesaid deed was merely a camouflage and it cannot be regarded as a bona fide family settlement. The mere fact that the land in question was recorded at the time when the family settlement was arrived at in the names of persons belonging to only one of the branches of common descendants, it cannot be said that the deed of family settlement was a device to effect a transfer of Sirdari land in favour of the petitioners. It has been held by the Hon'ble Supreme Court in Kale and others v. Deputy Director of Consolidation and others, A. I. R. 1976 S. C. 807 that; "the members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrange ment that other relinquishes all its claims of title 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 will find no difficulty in giving assent to the same. " (emphasis supplied ). The Hon'ble Supreme Court on a question whether a family settlement amounts to a transfer, held; "here the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among the family members. Could it be said that this amounts to a transfer of or creation of an interest in property ? For, unless it does, the action of Kadma Kaur would not fall within the purview of the aforesaid clause of Section 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi, A. I. R. 1914 P. C. 44 approving the earlier decision in Khunni Lal v. Govind Krishna Narain, I. L. R. 33 All. 356. (P. C.), the Privy Counsel held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. " In Raghubir Datt Pandey v. Narain Datt Pandey and others, A. I. R. 1930 Alld. 498 the Division Bench of this Court has held that: "a family arrangement is in no sense a transfer of property, for no right, vested or contingent, is conveyed by one party to another. The arrangement proceeds upon the assumption that one or other of the claimants has an antecedent title to the property in whole or in part or in unequal proportions, and the entire scheme rests not upon the transfer of a right but upon the recognition of a claim. The true character of the transaction appears to have been a settlement between the several members of the family of their dispute each one relinquishing all claim in respect of the property in dispute other than the following to his share and recognizing the right of the others allotted to them respectively. The acknowledgement of the claim of one party necessarily involves the abandonment of the claim by another, but this is not equivalent or tantamount to transfer. " In this view of the matter I am of the opinion that the petitioners became sole Sirdar tenants in respect of the land of Khata Nos. 71-B and 71-C, which have fallen in their share exclusively in the aforesaid family settlement and the opposite parties Nos. 4 to 7 would hold no right, title of interest in it. The learned counsel for the opposite parties, Sri K. G. Srivastava contended that for a valid family settlement all the members of the family should join. He contended that in the present case Kashi Nath was minor and had not joined in the family settlement and as such the said family settlement cannot confer or create any right, title or interest in favour of the petitioners. Tarn unable to agree with this contention. The said question cropped up in the case of Tel Bahadur Khan and others v. Nakko Khan and others, 1926r. D. 336 wherein Hon'ble G. N. Misra of Oudh Chief Court held that: "it is not necessary that in order to make a valid and binding family arrangement all the members of the family must be parties to it. If some members of the family settle their disputes by arriving at a settlement amons themselves there is no reason why that settlement should not be considered to partake of the nature of family arrangement. " In the present case Rai Nath the real brother of opposite party Kashi Nath was a party to the family settlement and he had also joined in the aforesaid deed of family settlement. Rai Nath and Kashi Nath along with Dukh Haran were given land of Khata No. 71-A which was also recorded in their names on the basis of the said family settlement. Kashi Nath. the opposite party No. 5, had filed a suit No. 128 of 1959 for cancellation of the aforesaid deed of family settlement on the ground that it was fictitiously and fraudulently got executed and that it is not binding on him. The suit was dismissed on 2nd September, 1960. No action was taken to get the said suit restored. It is well settled that a judgment by consent or default, is as effective as an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. (See 1895-1-, Chancerv Division 37 ). The Hon'ble Supreme Court placing reliance on the said decision also took the same view in S N. B. v. State of Orissa, A. LR. 1956 S,c. 346 at page 351 in para 8 of the said report. It is not disputed that the opposite party No. 5 after attaining majority had not filed any other suit for cancellation of the said document of family settlement. He had received benefit under the said deed of family settlement and he had not avoided the said deed within three vents even after attaining majority. It would thus be assumed that he rectified the said deed of family settlement. In this view of the matter I am of the opinion that the deed of family settlement would be binding on all the opposite parties Nos. 4 to 7 and they cannot claim to be the sole tenure holders of the land in dispute merely on the ground that it was recorded in their names alone at the time of the aforesaid family settlement was arrived at in Sirdari tenure. There is no specific prohibition regarding the mutual partition by way of family settlement of the Sirdari holding under the provisions of the TJ. P. Z. A. and L. R. Act. If on the basis of the family settlement any holding be it Sirdari or Bhumidhari is mutually partitioned amongst the claimants they would be entitled to get their names mutated in the revenue record. It would not be necessary that they should file the suit for declaration and partition in respect of holding prior to seeking of mutation on the basis of the family settlement, if it is found to be bona fide and genuine and not made for the purpose of circumventing the provisions of any enactment. Explanation to Section 34 of the Land Revenue Act provides; Explanation--For the purpose of this section the word 'transfer' includes (i) a family settlement by which the holding or part of the holding recorded in the record-of right in the name of one or more members of that family is declared to belong to another or other members; or (ii) an exchange of holding or part thereof under Section 161 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. In the aforesaid explanation the family settlement arrived at between the parties in respect of the holding, has been treated to be a transfer although the family settlement as already observed above, does not amount to a trans fer. In Commissioner of Income Tax. Andhra Pradesh v. Mis. Taj Mahal Hotel Secundrabad, A. I. R. 1972 S. C. 168 the Hon'ble Supreme Court has held: "the word 'includes' is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the 'statute'. When it is used, these words and phrases must be construed as comprehending not only such things as they signify accord ing to their nature and import but also those which the interpretation clause declares that they shall include. The word 'include' is also susceptible of other constructions which it is necessary to go into. " In Chori Ouso v. Sasoon Helegua and another, A. I. R. 1969 Ker. 11 the Full Bench of the Kerala High Court has held that: "it is a well known rule of interpretation that the" word 'include' or 'includes' is used as a work of enlargement and ordinarily implies that something else has been included which falls outside the general language that precedes it and to add to the general clause a species which does not naturally belong to it. " Similar view is taken by the Patna High Court in S. M. James and another v. Dr. Abdul Khair, A. I. R. 1961 Pat. 242 which is as under: "it is well settled that the expression 'including' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, and when it is so used, these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. The word 'including', therefore, is a term of extension. It import addition. It adds to the subject-matter already comprised in the definition. " Sub-clause (1) of the aforesaid explanation to Section 34 of L. R. Act is not confined to land of Bhumidhari tenure. It refers to the holding or part of the holding recorded in the record of the light in the name of one or more members of the family irrespective of the tenure under which it may be record ed, it, therefore, cannot be said that the family settlement cannot be made in respect of the Sirdari holdings and that on the basis the family settle ment mutation cannot be effected over sirdari holdings. In this view of the matter I am of the opinion that the Deputy Director of Consolidation legally erred in holding that since the land in dispute was Sirdari tenure no family settlement could be made between the parties in respect of it and the opposite parties Nos. 4 to 7 are the sole tenure holders of the same. As already observed above the petitioner have got exclusive share in the land in dispute on the basis of the family settlement in the Khata Nos. 71-B and 71-C. They were, therefore, rightly held to be the sole tenure holders of the land in dispute by the Settlement Officer (Consolidation) and the Consolidation Officer. In this view of the matter the family settlement although not amount to a transfer, but for the purposes of mutation to be effected in the names of the parties it has been treated to be a transfer under the aforesaid local Act and mutation will be effected in the revenue records on the basis of mutual partition by way of family settlement even in respect of Sirdari land, provided the family settlement is found to be genuine and bona fide and not a mere camouflage and made with a calculated design to circumvent any provision of law for the time being in force. In the present case genuineness and bona fide character of the family settlement has not been doubted by the Deputy Director of Consolidation. The names were also mutated in the revenue records on the basis of family settlement. The family arrangement being binding on the parties clearly operates as estoppel so as to preclude them from revoking or challenging the same. In this view of the matter, I am of the opinion that the opposite parties Nos. 4 to 7 cannot resile from the family settlement and the Deputy Director of Consolidation legally erred in holding them to be tenure holders of the land in suit by taking an altogether erroneous view that no family settle ment could be made in respect of Sirdari land. In the result, the -writ petition succeeds and its hereby allowed. The impugned order dated 11-8-1971 passed by the Deputy Director of Consolida tion is hereby quashed. Parties, shall, however, bear their own costs. .