FAKHRA BEGAM Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition is directed against the decree passed under U. P. Imposition of Ceiling on Land Holdings Act. Learned counsel for the petitioners confined the case to Khata No. 259 (175 old) of village Rakswara measuring 52 bighas, 8 biswas and 10 biswansis. The case set up by the petitioners was that as a result of family settlement in 1964 Smt. Fakhra Begam and her five sons had 1/6 the share each in the aforesaid land and this position was recognised during the consolidation proceedings. The Prescribed Authority held that the family arrangement was fictitious and had been brought about to defeat the ceiling law. The learned Additional District Judge also declined to accept the validity of the family arrangement. It is not in dispute that originally the aforesaid Khata was recorded in the name of Smt. Fakhra Begam alone. During consolidation operations the Assistant Consolidation Officer by his order dated October 19, 1964 directed the names of the five sons of Smt. Fakhra Begam to be recorded as co-tenure-holders along with Smt. Fakhra Begam in the said Khata. Since then they are all recorded in the revenue papers ever their respective shares. The Prescribed Authority, after referring to the statements of Syed Ahmad Qasim and Syed Asad Qasim examined on behalf of the tenure-holder and the Lekhpal Sri Sadhu Saran, came to the conclusion that Smt. Fakhra Begam alone was in possession over the entire land and she alone carried on cultivation. The Prescribed Authority also observed that Smt. Fakhra Begam had not filed any objection to the notice issued under Section 10(2) of the Act. These observations of the Prescribed Authority appear to have been made in a careless and negligent manner. The record has been sent for and it contains an objection filed on behalf of Smt. Fakhra Begam. It is signed by Sri Abdul Rab in whose favour a Vakalat nama had been executed by Smt. Fakhra Begam. Merely because the objection itself was not signed by her, it could not be treated as non-existence. Ahmad Qasim in his statement made a positive statement to the effect that there had been a partition ten-twelve years back and all the co-tenure-holders were in possession over their respective shares and carried on cultivation separately. He denied that farming was being done by him jointly with Smt. Fakhra Begam. To the same effect is the statement of Asad Qasim. Sadhu Saran, Lekhpal, admitted that the names of five other tenure-holders, apart from Smt. Fakhra Begam, were recorded over the disputed Khata. None of these witnesses stated, as observed by the Prescribed Authority, that all the sons of Smt. Fakhra Begam lived outside and no cultivation was done by them. There appears to be absolutely no basis for such an observation. The Prescribed Authority appears to have imagined things instead of looking into the record. The learned Judge rejected the case put forward by the petitioners on the ground that there was nothing on record to show that the five sons of Smt. Fakhra Begam had any title to the land of Khata No. 259 from before the start of consolidation operations. It is true that in proceedings under the Ceiling Act it was open to the Prescribed Authority to give his own finding regarding the factum and validity of the family arrangement and he was not bound by the decision of the Assistant Consolidation Officer but that could be done only on the basis of the material on record and the correct principle applicable to a case of family settlement. I have already commented on the reasoning of the Prescribed Authority. The basis on which the learned Judge rejected the validity of that arrangement also must be held to be untenable. For the validity of a family arrangement it is not necessary that the persons claiming under it must have some anterior title. The Supreme Court in Ram Charan Das v. Girja Nandini Devi and others A.I.R. 1966 S.C. 323 observed 'Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context 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 .......... 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.' Again in Kale and others v. Deputy Director of Consolidation and others A.I.R. 1976 S.C. 807 the Court laid down 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 acknoweldged by the parties to the settlement. Even 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 will find no difficulty in giving assent to the same. 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. It is obvious that existence of a prior title is not necessary for upholding the validity of the family settlement. It may be that the sons of Smt. Fakhra Begam had no title to the land in dispute yet if to avoid any present or future dispute and ensure family peace Smt. Fakhra Begam recognised hte rights of her sons to 1/6th share each the validity of such an arrangement could not be impeached. THIS arrangement was pleaded during the consolidation operations and it was accepted. Effect was given to the decision of the Assistant Consolidation Officer. Names of the sons of Smt. Fakhra Begam were recorded in revenue papers. They came in possession and carried on cultivation over their shares. I am not prepared to characterise the transaction as fictitious merely because it tends to reduce the holding of Smt. Fakhra Begam. There is nothing on the record to indicate that this arrangement was arrived at with a view to defeat the ceiling law.. No such presumption can be drawn merely because it results in reducing the area held by Smt. Fakhra Begam. In the result the petition is allowed. The orders of the Prescribed Authority dated August 30, 1976 and that of the learned Additional District Judge dated December 6, 1976 are quashed. The Prescribed Authority may recalculate the surplus area taking the share of Smt. Fakhra Begam in Khata No. 259 to be 1/6th share only. Parties shall bear their own costs.