RAMDEO Vs. BENI MADHO

JUDGEMENT

(1.) Family arrangement, a well known legal concept has been subject of animated discussion in its various facts. This petition filed under Article 226 of Constitution of India against orders passed by Consolida tion authorities. When the records were published under Section 9 of U. P. Consolidation of Holdings Act, Opposite pary No,1,a distant relation of one Sheo Harab but not his heir, filed an objection under Section against basic year claiming expunction of petitioner name, transferee from Sheo Harakh, as Sheo Harakh having entered into compromise in suit No. 455 of 1952 and agreed for life interest only for himself and his wife so long they were alive had no trans ferable interest therefore the sale-deed executed by him was ineffective and inope rative. It was prayed that petitioners' name be expunged and that of opposite party be entered and Sheo Harakh may be shown as life estate holder. Sheo Harakh died during pendency of proceedings consolidation officer and it has been found that he was not survived by any heir, a finding which has become final. On merits it was held by Consolidation Officer that in respect of another village it had been held by Settlement Officer Consolidation that after compromise Sheo Harakh had life interest only and although the ord;r did not become final yet in view of a decision of this Court in Shiv Ram v. Ram Ratan (1969 A. L. J. 83), such compromise was family settlement and binding on parties. Therefore the rights of Sheo Harakh were' limited and after his death opposite party became its sole tenure-holder and Sheo Harakh was entitled to execute any transfer- deed. In ground of appeal before Settlement Officer (Consolidation) a pedigree was disclosed and was claimed that as all the members of family were not party to compromise it could not be construed as family settlement. It was also urged that the restric tion on right of Sheo Harakh not to sell the land was contrary to provision out U. P. Z. A. and L. R. Act I of 1951. The appellate and revision authorities, however, maintained the order on the same reasoning as appealed to consolidation Officer. No finding was recorded on the two questions raised in ground of appeal and revision. Before examining the technical objection raised by learned counsel for oppo site party that petitioners should not be permitted to raise new points to assail the correctness of orders passed by consolidation authorities it must be stated that law on Family Settlement and various aspects arising out of it have more or less been settled by Hon'ble Supreme Court in Kaley v. D. D. C. (A. I. R. 1976 S. C. 807 ). But there has been serious divergence amongst learned counsels for parties, at times rising to emotional heights, on the concept of antecedent title as explained by the Hon'ble Court. To the counsel for petitioner it appeared strange if the law laid down by Hon'ble Court is understood as arrangement between two strangers to amount to family settlement. According to him a person who is not an heir, collateral, reversion or has any remote chance of succeeding to a property cannot be considered in law to be a member of family irrespective of the conside ration that he was a descendant from some remote common ancestor. The learn ed counsel maintained that in law there was no difference in an stranger and a person who could not be even prospective heir. Therefore, the compromise between Sheo Harakh who has been found to have died heirless and opposite party shall be deemed to be between two strangers and such compromise could not be considered as family settlement. On the other hand enunciation of law in Kaley's case that antecedent title shall be assumed even in favor of a person who had no title appeared to be so plain and simple that the learned counsel appeared to be amazed that this Court heard any argument on it. He even invoked the binding of Kaley's decision under Article 141 of Constitution of India. Antecedent title has been accepted to be the foundation and core of Family Settlement. Its ambit has, however, been widened from time to time. It has been held in decision after decision from Privy Council to Supreme Court that the word, 'family' in the context of Family Arrangement is not to be understood in a narrow sense. True but the farthest extent to which expanse of the word family has been applied is discernible from Supreme Court's decisions itself. In Sahu Madho Das v. Mukund Ram (A. I. R. 1955 S. C. 481.), it was extended in a case where a widow made arrangement for her daughters and their sons who of course were rever sions only. Again in Krishna Behari Lal v. Gulab Chand (A. I. R. 1971 S. C. 1640.) although the Supreme Court observed, 'to consider a settlement as family Settlement it is not necessary that parties to the compromise should belong to one family' but the compromise was entered between, near relations' and in respect of property which was originally -owned by their common ancestor. It was not a case where the word 'family' was extended to include even those who did not have the remotest chance of succeeding and, therefore, strangers in law. In Kaley's case it was held, "even if one of the parties to the Settlement has no title but under the arrangement the other party relinquishes all its claim or title in favor of such a person and acknowledged him to be the sole owner, then the antece dent title must be assumed and the family arrangement will be upheld. " But this cannot be read in isolation as the learned counsel argued. It has emerged out of what the Hon'ble Court held about 'family' at page 812; "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 these persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spies successions. " Kaley was daughter's son and under Z. A. Act daughters are nearer than daughter's son. He was not, therefore, an heir but he was certainly 'prospective heir'. It was, therefore, held that although he had no title but he was within the fold of word 'family'. But to extend it further and argue that the expression, 'with out title, has to be understood as widening the meaning to include any person who could by some remote link connect himself with family cannot be accepted either on the principle laid down in Krishna Behari case Kaley's case. This can further be explained by general order of succession provided in Section 171 of the Z. A. and L. R. Act I of 1951 which reads as under, (a) male linear descendent (b) widow. (c) * * * * (d) father (e ). . . . . . . (ee) unmarried daughter (f) brother being son of same father (ff) unmarried sister (g) married daughter (h) daughter's son (i) (j) (k) (l) (m) (n) (o) (oo) (P) (q) (r) father's father's son's son. If a compromise is entered between persons mentioned at (ee), (f) (ff) (g) and (h) in respect of property of a bhumidhar, sirdar or Asami and to such compro mise the person mentioned at (r) is party then in the extended meaning of family he may be deemed to be a member and the arrangement may be construed as a family settlement. It was in this sense that in Krishna Behari Lal's case the Supreme Court observed that 'the word 'family' need not be confined to members of one family. But if the compromise is being entered between the above-men tioned persons and one of the persons who is party to it is father's son's son then it is obvious that he cannot be considered to be even a prospective heir, therefore, such a person cannot be included in the word 'family' howsoever, wide its meaning be construed. He may have some remote link to the common ancestor but he would not be covered in the principles laid down by these deci sions. The expression' person without title' at page 813 of Kaley's case, there fore, has to be understood in this light. Assuming that a person without title, not even a prospective heir, may be a member of the family, and a compromise entered by such a person may be construed as a family settlement yet the entire foundation of family arrangement is bona fide settlement of dispute. After reviewing various authorities it was held in Kaley's case that, "family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division. " Whether an arrangement is bona fide has to be determined on the facts of each case. It may be inferred or assumed as a matter of law by long course of deal ing as was done in Sahu Madno Das's case, that our courts may, having regard to relationship, terms of compromise and other factors construe a compromise as family arrangement as was done in Krishna Behari's case. Similarly in Kaley's case bona fide was inferred because on the date of compromise neither Kaley nor his heirs were certain of their interest, and both relinquished part of their expected interest in favor of other. Maybe that even without Hindu Succession Act a daughter married or unmarried who succeeded to the interest under Section 171 Z. A. and L. R. Act became absolute owner as argued by learned counsel for opposite party but the Hon'ble Court while upholding claim of Kaley indicated these as guiding factors to decide whether compromise was bona fide or not. From the orders of the consolidation authorities or the averments in coun ter-affidavit it does not appear that there was any circumstances or feature from which an inference can be drawn that in fact compromise entered between Sheo Harakh and opposite party was a family settlement. The consolidation officer decided the dispute as a matter of law on the principles laid down by this Court in shiv Ram's case a decision wholly inapplicable to the facts of the case. In their objection, copy of which has been filed as Annexure to the writ petition, the opposite party did not claim to belong to the family of Sheo Harakh. They based their claim of limited right of Sheo Harak in the compromise entered in civil Court and his consequent disability to transfer land in favor of petitioner. After the finding recorded by Consolidation Officer that Sheo Harak died heir-less and his property devolved on Gaon Sabha no inference could be drawn in law in favor of opposite party that they had antecedent title nor there is any material or circumstances to establish that compromise was bona fide. From the terms of compromise, copy of which has been filed as Annexure both to the writ petition and counter-affidavit, it is clear that Sheo Harak was the sole owner of the land in dispute. An improvement has been attempted to be made in the counter-affidavit by saying that property was ancestral, a case which was not set up either in Civil Court or even before consolidation officer. It appears to he embellishment of the counsel to cover up the lacuna which has been left in the pleadings. The allegations, however, remain unsubstantiated by any material whatsoever. How could there be a family settlement in respect of property of which Sheo Harak was sole owner with opposite party, who did not claim even to be prospective heir. None of the ingredients of family settlement are present except the wrong application of principles in Shiv Rants case, by Consolidation Officer. The distribution, to say the least, was not only unequal but unfair. Admittedly Sheo Harak's wife was alive when compromise was entered. Under Z. A. and L. R. Act she would have been an absolute owner of the property. She was not a signatory to the compromise. But she was deprived of her entire interest and life interest was created in her favor. Not one decision could becited where inference of antecedent title or bona fide dispute was raised and com promise was construed as family arrangement in respect of property of which one was sole owner and to which other members of family were not party. Shiv Ram's case was erroneously relied by Consolidation authority and the erroneous impression continued even in the argument of the learned counsel for opposite party. It was a compromise between first cousins in respect of ancestral property. In this back around the Hon'ble Judge drew an inference of bona fide settlement of dispute. In order to demonstrate the hollowness of opposite parties' claim and establish that compromise was not bona fide the petitioner disclosed a pedi gree in appeal to show that there were other members of the family also but in view of that has been stated above and the finding recorded by consolidation officer that Sheo Harakh died heirless it is not necessary to examine it or direct the consolidation authorities to decide the dispute afresh. Apart from the unfairness etc. the compromise whether it is taken as it is or construed as family arrangement appears to be contrary to public policy. Creation of life interest with prohibition to transfer or sale not only by the person entering into compromise but by successor also cannot be countenanced. Life estate with restriction on the right to transfer and sale was peculiar to females under Hindu Law. In Shiv Ram's case it was upheld in respect of pro perty of male bhumidhar as the compromise was construed as family arrange ment. But in this case life interest was created not only in favor of Sheo Harakh but his wife as well without her consent during her life time. It was an attempt to change the course of devolution. Under Section 190 (a) of Z. A. and L. R. Act the interest of Bhumidhar extinguishes if he dies leaving no heir entitled to inherit in accordance with law on extinction of interest the Land Management Committee is entitled to take over the land and Section 194 of Z. A. Act. If a bhumidhar without heir is permitted to enter into compromise with a person who is not even a prospective heir with life interest for himself and absolute interest in favor of stranger it would be defeating the provision of law by a subterfuge which cannot be permitted. Reliance was placed on Sailendra Narayan Bhanjadeo v. State of Orissa (A. I. R. 1966 S. C. 346.) and is was urged that peti tioners who stepped into shoes of Sheo Harakh cannot resile from the com promise and are precluded from challenging it on principle of estoppels. Suffice it to say that there are no estoppels against statute particularly if the action is in violation of public policy. It was open to the petitioner to urge that the compromise was invalid and was not binding on them. Learned counsel urged that the compromise was acted upon as is clear ii-om allegation made in paragraph 18 of the counter-affidavit. According to learned counsel as opposite party performed his part of agreement under compro mise the petitioner should be held bound by it. The compromise was entered in 1954 where as the sale-deed was made in 1957 and soon after the name of peti tioner was entered in revenue records. No step was taken to get entries corrected. So long consolidation did not start there is no evidence to show whether the alleged payments of irrigation dues were in respect of land in dispute and if then for which period. The argument of acting upon on vague allegations cannot be accepted. Apart from it, as pointed out above, as the compromise was wholly illegal and invalid no right could accrue in favor of opposite party even if it was acted upon for a year or two particularly when opposite parties did not challenge the entry in favor of petitioner in revenue records. Learned counsel vehemently argued that petitioner cannot be permitted 1o raise these points for the first time in writ petition. Reliance was placed on Bechan Singh v. Gauri Shankar (A. I. R. 1971 S. C. 1531.), and Ganesh Dutt Singh v. S. D. O. Tarab-ganj (1966 A. L. J. 631 ). Learned counsel urged that Supreme Court repeatedly deprecated the practice of the High Courts to entertain fresh arguments. None of the submis sions made by him have any merit. As pointed out earlier the petitioner had claimed both in appeal and revision that compromise was illegal and the creat ion of life interest was contrary to Z. A. and L. R. Act. Even in paragraph 18 of the writ petition it is urged that questions were raised before consolidation authorities but they failed to consider the same. In the result this petition succeeds and is allowed. The orders passed by all the three consolidation authorities are quashed. The petitioner shall be entitled to its costs. .