NIFIKIR Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THESE appeals are directed against the judg ment of a learned Single Judge dismissing the petitioner- appellants writ petitions challenging orders of the consolidation authorities. In the basic year of the consolidation proceedings Suba and others were recorded Bhumidhars and Sirdars of the plots in dispute, while Nifikir and Subhag and other appellants were recorded in pos session as trespassers. Nifikir and other appellants filed objections claiming Sirdari rights on the basis of their continuous possession since 1904 as sub-tenants. Suba another respondents contested their' claim and asserted that the objector-appellants were Asamis as the land in dispute had been let out to them by Smt. Mantorna and Smt. Ram Piari who were widows and disabled persons. The consolida tion Officer rejected the objections of Nifikir and other appellants. On appeal, the Assistant Settlement Officer (Consolidation) set aside the order of the Consolidation Officer and held the objectors Sirdars of the land in question. On revision by Suba and others the Deputy Director of Consolidation set aside the order of the Assistant Settle ment Officer (Consolidation) and restored the findings of the Con solidation Officer, aggrieved, the objector-appellants filed writ peti tions in this Court under Article 226 of the Constitution challenging the orders of the Deputy Director of Consolidation and Consolida tion Officer. A learned Single Judge dismissed the petitions. Hence these appeals. There is no dispute that the land in dispute was Sir land which belonged to the joint family of Suba and others including the hus bands of Smt. Mantorna and Smt. Ram Piari. It appears that on the death of the husbands of the two ladies, all the co-sharers of the joint family executed a document on July 10, 1904, allotting the plots in dispute and certain other property to Smt. Mantorna and Smt. Ram Piari. The 'Two ladies' let out the land to the predeces sors of the objector-appellants. The names of Suba and other co- sharers of the joint family however continued to be recorded in the revenue papers along with the two ladies. Even after the death of the two ladies the names of Suba and others co-sharers continued to be recorded as Bhumidhars and Sirdars even after the date of vest ing. On the pleadings of the parties three questions arose for deter mination before the Consolidation Authorities and the learned Single Judge. Firstly, the objector-appellants questioned the genuine ness of the document dated July 10. 1904. The learned Single Judge rightly held that the findings of the Deputy Director holding the document to be a genuine were findings of fact which could be inter fered with by this Court under Article 226 of the Constitution. We agree with the findings of the learned Single Judge. The second question raised was as to whether the document dated July 10, 1904, was a memorandum evidencing a family arrangement, allotting the plots in dispute to the two widows of the family for their main tenance. The Deputy Director of Consolidation and the learned Single Judge answered the question in affirmative and held that the document evidenced a family settlement and the land in dispute had been earmarked to the two widows for their maintenance. The Third question was as to whether Suba and other co-sharers of the family ceased to be land-holders and Smt Mantorna and Smt. Ram Piari ware exclusive land-holders of the plots in dispute. That ques tion was again determined in favour of Suba and other respondents by the Deputy Director as well as the Single Judge. The learned Single Judge held that since the land in dispute had been earmarked by the co-sharers of the family property for the maintenance of the two ladies, the land reverted to the co-sharers on the death of the widows and the objector-appellants were Asamis as the letting had been done by widows who were disabled persons. On behalf of the appellants, it was contended that the document dated July 10, 1904, was not in the nature of a memoranda evidenc ing family arrangement instead it was an instrument of transfer, which conferred title to the two widows in the property mentioned in the document and as the value of the property exceeded rupees hundred, the document required registration. Since the document was not registered it was inadmissible in evidence and other cosharers of the family continued to be landholders. We consider it necessary to consider the true character of the document dated July 10, 1904, which was admittedly executed by way of family settlement. Family arrangement may be oral or documentary. Where the terms of a family arrangement are reduced into writing registration would be necessary if the document creates or extinguishes any right in immovable property. There is a distinction between a do cument of family arrangement creating or extinguishing rights in immovable property and a document containing the terms and con ditions of the family arrangement which may have been made al ready. In the latter case, the document itself does not create or extinguish any right or title in immovable property and it is not compulsorily register able. Documents falling in the former category must be registered if the value of the immovable property exceeds Rs.100/-.If such a document is not registered it would not be ad missible in evidence. The true character of a document as to whe ther it is a memorandum prepared after the family arrangement had already been made or that it is an instrument creating or extinguish ing rights in immovable property depends on the recitals and con tents of the document. The terms contained in the document would reveal its true nature. In the instant case, the document in question is on record as Annexure I to the Supplementary affidavit. The re citals contained in the document show that some dispute had arisen between the widows and other cosharers of the Joint Hindu family. In order to resolve that dispute the document was executed by all the cosharers allotting the land in dispute and other family property exclusively to the share of Smt. Mantorna and Smt. Piari. The re levant portion of the document is as under (English translation): "Therefore we all have voluntarily arrived at a family arrange ment and partition of all, our tenancy zamindari, Abadi and Patta land etc. and we hereby agree to the following: 1. That the other cosharers will have no concern with all land and property which has fallen into the share of Smt. Mantorna Kuer widow of Ram Kuber and Smt. Ram Piari widow of the Ram Swarup and they shall be owner of all that property.

(2.) THAT Smt. Mantorna Kuer and Ram Piari do hereby agree that they will have no right or share in the land or property except that which has fallen to their share and they will have no right or share in the land or property except that which has fallen to their share and they will have no concern with other family property." The document thereafter mentions the list of property including the land in dispute which fell exclusively to the share of Smt. Mantorna Kuer and Smt. Piari Kuer. The terms and conditions and the recitals as quoted above clearly stipulate that the cosharers agreed to allot the share to the two widows and for that purpose they exe cuted the document. The true character of the document is discernable from the use of the words: 'We therefore agree to the fol lowing'. Terms which followed thereafter purported to create in terest in land in favour of the two widows and under clause 2 of the agreement the two widows purported to relinquish their title to other properties of the joint family. The document nowhere men tioned that the land in dispute was earmarked to the aforesaid two ladies for their maintenance. On a plain and simple reading of the entire document it is abundantly clear that the document purported to transfer interest in the immovable property to the widows. The document cannot be held to be memoranda evidencing a family arrangement which may have taken place earlier. In our opinion since the document in question purported to transfer interest in im movable property to the two widows of the family it required re gistration. The Indian Registration Act III of 1877 was in force at the time the document was executed. Section 17 of that act requir ed compulsory registration of document purporting to create or ex tinguish any right title or interest in any immovable property value of which exceed Rs.100/. Admittedly the document in question was not registered although the value of the property bought to be transferred exceeded Rs.100/-. The consolidation authorities as well as the learned single Judge held that the document did not require registration. For the reasons -recorded above, we are of the opinion that the document in question was inadmissible in evidence it was not registered. In the absence of registration no valid title could pass to Smt. Mantorna and Smt. Ram Piari and the property which was sought to be transferred to them exclusively continued to be the joint family property. There is yet another circumstances which supports our conclu sion- Respondents Suba and others never raised any plea in their written statement filed before the consolidation authorities that the and in dispute had been allotted to the two widows in lieu of main tenance, and that they had inherited only widows interest. On the other hand, in paragraph 5 of the written statement filed before the consolidation authorities the respondents had pleaded that on July 10, 1904, there was a family settlement as a result of which the plots in dispute fell exclusively to the share of Smt. Mantoma and Smt. Ram Piari and ever since they had been exclusive owners and other cosharers had ceased to have any right or interest in those plots. In view of their express pleading in their written statement it was not open to the respondents to raise a new plea at the time of arguments, which was contrary to the stand taken in the written statement. The consolidation authorities, in our opinion, committed patent error in entertaining the plea of maintenance. Learned counsel for the respondents urged that under the law as it existed in 1904, a widow had no right to the joint family property and as such the family arrangement dated July 10, 1904, could not and did not create any interest in the land in question in favour of the two ladies, as such the document in question merely recorded an agreement for earmarking land for the maintenance of the two ladies. He urged that since the widows could not inherit absolute right to property, the document could not be an instrument of transfer of interest in immovable property. We find no merit in this conten tion. Smt. Montorna Devi and Smt. Ram Piari, the two widows were admittedly members of the joint family consisting of the respondents' predecessors-in-interest. The cosharers of the joint family property relinquished their claim in favour of the two widows and acknow ledged them to be the sole owners of the property which was ear marked for them exclusively under the family arrangement. In case of family settlement where share is allotted to a member of family it is not necessary that the party must have legal title or claim to the property, it is sufficient that the parties to the family arrange ment may have some enactment title or even a possible claim to the property. The two widows of the family may not have any legal 1 right or title to the property exclusively, but nonetheless, they were entitled to maintenance and to inherit the property of their husband as their widows, and the other cosharers purported to create interest in the joint family property by executing the document in question. The two ladies were not strangers to the family. In Kaley v. Deputy Director of Consolidation A.I.R, 1976 S.C 807, the Supreme Court held that even if one of the parties to the family settlement may have no title but un der the arrangement if the other party relinquishes his claim or title in favour of such person and acknowledges him to be sole owner of some party of the family property then antecedent title must be as sumed and the family arrangement must be upheld and the court should find no difficulty in giving effect to the same. In the instant case, since the cosharers of the property acknowledged the two wi dows to be sole owners of the property allotted to their share, the question of antecedent title to the plots in dispute becomes irrelevant. The widows may not have right to the property but the cosharers were legally competent to transfer interest in 'the family property to them which they purported to do by executing the document in question. We, therefore, hold that through the document in question purported to create interest in immovable property it was inadmis sible in evidence for want of registration. The next question which falls for consideration is, as to whe ther Smt. Mantorna and Smt. Ram Piari were entitled to let out the land being disabled persons. There is 110 dispute that the respon dents and their predecessors-in-interest were landlords and the land in dispute was their Sir and fixed rate tenancy. There is further no dispute that the two ladies had let out the land in dispute to the appellants and that they were holding the land as sub-tenants of the Sir land. Under Section 157(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1951, a widow is entitled to let out the whole or any part of her holding but if the holding is held jointly by more than one person, then no part of the holding can be let out unless all the persons having share in the holding suffer with either of the dis abilities enumerated in that section. Section 21 (a) of the U.P. Zamindari Abolition and Land Reforms Act lays down that a sub tenant of Sir land would be Asami if the land-holder or if there are more than one land- holders, all of them, are disabled persons who fall within one or more of the classes mentioned in sub- section (1) of Section 157. Since the document dated July 10, 1904, was invalid for want of registration, the other co-sharers continued to be land-holders of the land in dispute. Even though the two ladies: but as the document was invalid it did not extinguish the rights of other co-sharers from the property in dispute. The other co-sharers were entitled to receive rent from the sub-tenant- Section 3(11) of the U.P. Tenancy Act defines 'landholder' which means a person, to whom rent is payable but for a contract, express or implied. Clause (13) of Section 3 of the U.P. Tenancy Act defines 'landlord' to mean the proprietor of a Mohall or a share or a specified share therein. Admittedly, the members of the joint family were propri etors and landlords of the plots in dispute. Since the document dated July 10, 1904, failed to confer any exclusive title to the widow the other co-sharers of the family property did not come to be land-hol ders. There is no evidence that at the time of letting out or prior; to April, 1945, each one of the land-holders was subject to any of the disabilities mentioned in sub-section (1) of Section 157. The Assistant Settlement Officer (Consolidation) recorded findings that the name of the other co-sharers was throughout recorded in the revenue papers along with the two widows and they also continued to be land-holders along with the widows. We are in agreement with those findings. In the circumstances, we find ourselves unable to uphold the finding of the Deputy Director of Consolidation and the learned Single Judge that the appellants were Asamis under Section 21 (h) of the Act. In our opinion, as the appellants were sub-tenants of Sir land they became Adhivasi under Section 20 (a) and after October 30, 1954, namely, the appointed day under the U.P. Supplementary Act No. XX of 1954, they required Sirdari rights. Special Appeal No. 425 of 1968 has been preferred by Suba against the judgment of the learned Single Judge dismissing his writ petition. It appears that Dubari and Awadhoo claimed Sirdari rights on the basis of being sub-tenants of Sir land. Their claim was contested by Suba on the ground that since that land exclusive ly belonged to the two ladies, namely, Smt. Mantorna and Smt. Ram Piari, respondents Dubari and Awadhoo could not acquire Sirdari rights. The Settlement Officer as well as the Deputy Director of Consolidation both repelled the contention of Suba on the ground that the document dated July 10, 1904, was a fictitious document and the two ladies were not exclusive land-holders of the plots in dispute. Suba challenged the orders of the consolidation authorities in this Court by means of a writ petition which was dismissed by a learned Single Judge. After hearing learned counsel for the par ties, we are of the opinion that it is not open to this Court to inter fere with the findings of fact recorded by the Consolidation autho rities, Suba is not entitled to any relief. As discussed earlier, even if the document is held genuine no exclusive right or title in the land in question was transferred to the two ladies and as such they could not be exclusive land-holders, Suba continued to be land-holder of the plots in dispute along with the two ladies. In this view of the matter we uphold the order of the consolidation authorities and of the learned Single Judge. In the result, we allow special Appeals Nos. 403, 327, 386, 387, 388 and 404 of 1968, and quash the order of the Deputy Director dated February 9, 1966 and restore that of the Assistant Settlement Officer (Consolidation). Further, we dismiss Special Appeal No. 425 of 1968 as well as the writ petition out of which the said special Appeal arose. In the circumstances of the case the parties shall bear their own costs.