On the question of family settlement, a celebrated judgment of the Constitution Bench of the Hon'ble Apex Court was rendered in Civil Appeal No.37 of 1968, Kale and others Vs. Deputy Director of Consolidation and others, on 21.1.1976, reported in 1976 (2) Revenue Decisions 69. This judgment was unequivocal on the question of family settlement/arrangement and it is reigning the commands of law in this field even today. The significant points of the judgment are being cited as below:
"......By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity andhomogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire county, is the prime need of the hour. A family arrangement by which the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. 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 those persons who may have some sort of antecedent title, asemblance of a claim or even if they have a spes secessionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle the settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.....
In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions :
(1). The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2). The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3). The family arrangement may be even oral in which case no registration is necessary;
(4). It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17 (2) of the Registration Actand is, therefore, not compulsorily registrable;
(5). 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 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 assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6). Even if bona fide dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement.
A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement."
Uttaranchal High Court
Smt Rama Devi And Another vs Mahendra Pal And Others on 15 September, 2015
Citation: 2016 (114) ALR 852, 2016 130 RD27 Writ Petition (M/S) No. 689/2015
By means of this petition, a direction has been sought to set aside the impugned order dated 17.5.2010, passed by the Assistant Collector, Ist Class, Haldwani, District Nainital, in Revenue Suit No. 22/226 (2005-06), as well as the orders dated 16.4.2013 and 29.1.2015, passed by learned Additional Commissioner (Kumaon Division), Nainital in ZA Revision No. 92 (2009-10)/1(2012-13), Smt. Rama Devi v. Vijay Kumar & Others.
2. The dispute between the parties pertains to an agricultural land of around more than 100 bighas situated in Village Bhawan Singh Nawad, Tehsil Lalkuan, District Nainital. The details of the said land have been enumerated in the suit instituted by the petitioners under Section 229B of the Zamindari Abolition & Land Reforms Act (for brevity, hereinafter referred to as the 'Act') in 2005-06.
3. To appreciate the controversy between the parties, I would like to mention the genealogical table, which will show their mutual relations and some other facts as well.
Rela Ram (Original Owner) ↓
-------------------------------------------------------------------------
↓ ↓ ↓
Mathura Dutt Kishan Chand Om Prakash
(Died in 1982) (Died in 1992) (Died in 1953)
↓ (wife predeceased) ↓
↓ ↓ ↓
↓ Rama Devi Vijay Kumar
↓ (married daughter) (Resp. no.5.)
↓ (W/o Madan Lal)
↓ ↓
↓ Ravindra Mohan
↓ (S/o Rama Devi)
↓
↓ ↓ ↓ ↓
Mahendra Pal Sudesh Kumar Surendra Kumar Satish Kumar (Resp. no.1) (Resp. no.2) (Resp. no.3) (Resp. no.4)
4. The year of death and fact of predeceased, as mentioned in the above table, were revealed during the course of oral arguments by learned Counsel for the parties and have not been disputed by anyone.
5. Now, the brief facts, relevant for the purpose, are that one Rela Ram was the owner of not only the land, in question, but also of the vast agricultural land including his big Residential heritage in District Jalandhar (Punjab). A prima facie look on the vastness of such land is being reflected from the revenue records filed by the petitioners along with their supplementary affidavit. It has sufficiently been in the evidence, which will be discussed by this Court later, that the land of Punjab remained in factual possession of all the five private respondents, while the land situated in Gram Sabha Kharakpur, Tehsil Lalkuan, District Nainital, remained in possession of Kishan Chand, from whom it was inherited by his married daughter and her son, the petitioners herein. This was so under some mutual family settlement/arrangement (though denied by Respondent No. 5) as per convenience of the parties, which with the course of passing decades had been accepted in their respective ownership as well disregard of the revenue entries in Khataunis. That is why, the vast land of Punjab has been shown in the joint ownership of Kishan Chand (from whom the petitioners have inherited the land at Lalkuan) as well as the private respondents; and equally, the land at Lalkuan was also in the records showing the name of all the petitioners (after the death of Kishan Chand) as well as Om Prakash and Mathura Dutt. Since the petitioners, at the one hand, and all the respondents, at the other, were in the settled possession for not one or two decades, but more than three decades on the land at Lalkuan and Jalandhar respectively, so by their conduct and as per their mutual convenience, they in fact have waived their respective rights accordingly, viz., Kishan Chand, then Smt. Rama Devi and Ravindra Mohan have waived their right of ownership on the land situated in Punjab, while the said respondents had done so with respect to the land in Lalkuan, disregard of noticing the continuation of their respective names in the documents of title at either places.
6. In the above backdrop, the petitioners instituted a suit under Section 229B of the Act, as indicated above, and in the array of parties, they mentioned the names of all the private respondents, besides the State and Gram Sabha Kharakpur. It cannot be put aside that the address of all the respondents was shown as Village Bhawan Singh Nawad, Tehsil Lalkuan, District Nainital. Learned Counsel of the respondent no. 5 has agitatedly harped on the standpoint of address so written and shown and which was a significant cause of passing the impugned orders by the authorities concerned because, in fact, these respondents were not residing at the present address. Instead they were residing at their Punjab address (this controversy shall be dealt by this Court well hereinafter). So, naturally the Process Server of the revenue court returned the process with the remark that "respondents were not found residing at the address". The step taken by the revenue court was the publication in the local newspaper "Uttar Ujala", which does not have much circulation and thus not so widely read by the people. Deeming the service sufficient, the Assistant Collector passed the order dated 9.1.2007 with a direction to mutate the names of the petitioners on the land, in question. So, their names were recorded, expunging the names of all the respondents.
7. Then, the respondent no. 5 somehow after almost one and half year got the information on 4.6.2008 regarding this mutation. He rushed to the spot and moved an application under Order IX Rule 13 C.P.C. dated 6.6.2008 seeking to set aside the said ex parte decree passed by the Assistant Collector on 9.1.2007. Here also, the respondent no. 5 Vijay Kumar chose the publication mode of service in the same "Uttar Ujala" newspaper and thus the service was effected. The petitioners objected and after hearing both the parties, the Assistant Collector passed the order dated 17.5.2010 setting aside the decree, as mentioned above. The case was directed to be restored to its original number. The petitioners filed Revision No. 92 (2009-10)/1(2012-13) and having heard both the parties on the said revision, the Additional Commissioner, vide his order dated 16.4.2013, sustained the order of Assistant Collector dated 17.5.2010.
8. An application to review the aforesaid order dated 16.4.2013 was moved by the petitioners on 9.7.2013, wherein an order of status quo, during the pendency, was passed on 26.9.2013. Feeling aggrieved, respondent no. 5 filed a Writ Petition (MS) No. 2447/2013 in this High Court. In the said writ petition, a coordinate Bench of this Court passed the order dated 7.10.2013, thereby vacating the interim order of status quo on the ground that since the review was moved after the period of limitation, so no status quo should have been granted as an interim measure.
9. Taking advantage of this vacation of interim order of status quo, respondent no. 5 hurriedly and anxiously executed three sale deeds on 3.2.2014, first one in favour of Shiv Charan Singh Mehta for the land ad measuring 1.287 hectares, second one in favour of Jai Shri Bisht for the land measuring 0.664 hectares and the third one in favour of Ghanshyam Pant for the land measuring 0.644 hectares. Thus, he sold 2.575 hectares land in total including about 300 trees. This is another aspect of the matter that the petitioners filed the Original Suit No. 63/2014 for the cancellation of such sale deeds and the same is pending adjudication before the competent civil court wherein written statement, supported by their affidavit as well, has been filed by the opposite parties no. 1 to 4 on 9.10.2014.
10. In the same writ petition, another coordinate Bench of this Court, on 8.8.2014, modified the order dated 7.10.2013 (which was passed by another coordinate Bench, as indicated above) to the effect that no third party interest will be created over the land, in question. So, at the strength of this modified order, the parties are maintaining the status quo as of now.
11. To the misfortune of the petitioners, the review filed by them was dismissed by the Additional Commissioner on 29.1.2015. So, this way, the petitioners now have knocked the doors of this Court by filing the instant writ petition under Article 227 of the Constitution of India.
12. The whole gamut of the arguments as placed by the learned Counsel for the respondent no. 5 is revolving around a pivot that the decree passed on 9.1.2007 was ex parte and without rendering any opportunity of hearing to respondent no. 5, at whose instance such decree has been set aside. He argued that such decree could not have been passed. Since the service was effected on the address, where respondent no. 5 never resided, so he was in fact never served and whatever service accepted as effective was only a substituted service in terms of Article 123of the Limitation Act. So, his application under Order IX Rule 13 C.P.C. was not barred by the 30 days' limitation, as envisaged under the Act. With these facts, the court of Assistant Collector was right to set aside such decree and thereafter the Additional Commissioner has rightly sustained the setting aside of ex parte decree dated 9.1.2007.
13. Prima facie, the above argument sounds well, but the real resonance of the controversy between the parties, which is surging and reverberating from the pacific deep, cannot be ignored as unheard. The arguments put forth by the learned Counsel of the respondent no. 5 are logical to an ordinary legal mind, but at the same time, when all the necessary relevant facts of such controversy have been placed before this Court, then it behoves to this Court to pave the way of substantial and real justice between the parties. If this Court sustains the impugned orders, likewise the courts below, then it will be a sheer paper justice on coiling technical grounds, ignoring the spirit of real controversy. It is all the more necessary because it has been an age-old proposition of the legal jurisprudence that justice should not only be done, but it should appears to have been done. Further, it is difficult to forget that this Court is a Court of Justice and has to advance the same with the assistance of law blended with equitable principles. Hence, the Court feels that to send the matter back to the initial stage, inasmuch as to the Court of Assistant Collector and then further in the hierarchy of the Courts therefrom, will be to force the parties to face the decades long litigation again, which can never be the object of any legislation. Rather, the interest of justice rests in the final adjudication, when the matter has come up before the level of this Court with all relevant facts and evidence needed for deciding the controversy. So, on an apparent look, the arguments made hereinabove by the learned Counsel for the respondent no. 5 may be understandable, but this Court must not hesitate to uplift the veil in furtherance of course of justice.
14. Before entering into the real merits, in order to lift such veil, this Court would like to make certain observations as regards the sufficient service upon the respondent no. 5 while passing the decree dated 9.1.2007.
15. Learned Counsel of the respondent no. 5, having been much ado about nothing, repeatedly harped upon that being the close relatives, it could not be anticipated on the part of the petitioner to be unaware about the real Punjab address of the respondents. In this regard, the Court would like to observe that the petitioner Smt. Rama Devi is his cousin sister and another petitioner Ravindra Mohan is the son of such sister. They are residing at the present address of Village Bhawan Singh Nawad for last several decades and the respondent no. 5 Mr. Vijay Kumar, in fact, is residing in District Jalandhar, Punjab and most probably in Village Rurka Khurd, Tehsil Phillaur of such District Jalandhar along with other respondents 1 to 4. It cannot always be accepted from a cousin sister to know the address of her such brother (respondent no. 5). More so, when by the conduct, inter se, between the parties, they had separated their relations and possessions over the land held by them respectively in Lalkuan and Village Rurka Khurd, Tehsil Phillaur, District Jalandhar in Punjab from decades' back. Further, if the argument of learned Counsel for the respondent no. 5 is accepted for a moment, then it is very germane to have note of this fact that respondent no. 5 never disclosed his Punjab address even in the application filed by him under Order IX Rule 13 C.P.C. on 6.6.2008. In such application, as also in the Vakalatnama filed therewith, in Writ Petition (MS) No. 2447/2013 filed by him before this Court as well as in the affidavit dated 3.10.2013 filed in support of such writ petition, he mentioned his address as if he is residing in Village Bhawan Singh Nawad, Tehsil Lalkuan, District Nainital, whereas he never resided at this address, but in fact in Jalandhar, and this is the main ground of his entire defence. That apart, even in those three sale deeds, which he executed on 3.12.2014, he nowhere disclosed his address of Jalandhar, but showed the address of Village Bhawan Singh Nawad. These sale deeds have been placed on the record of this Court along with the rejoinder affidavit filed by these petitioners. What circumstances or perhaps ill intent made him shy to keep his real address a secret, not disclosing the same in so many papers right from 2008 to 20.4.2015, where for the very first time he disclosed his real address of Jalandhar (Punjab) in the counter affidavit filed in this writ petition. This covert attempt to keep concealed his address was not an innocuous gesture on the part of the respondent no. 5, but it was overtly a covetous act of dishonesty with ulterior motives of making himself with unjust enrichment and such intent was the fervour, which is explicable by the facts of quickly executing the three sale deeds in respect of 2.575 hectares land, while the matter was still subjudice in the Court of Additional Commissioner. The doctrine of public policy, which is to be preserved and maintained by this Court, always discourages such unjust enrichment in order to do the social justice as well.
16. It is also relevant to mention that other respondents 2 to 4 were never shy in disclosing their real address of Village Rurka Khurd, Tehsil Phillaur, District Jalandhar in Punjab and that is why, in their written statement supported by the affidavit, they have disclosed such address in their pleadings.
17. The whole edifice whereupon the justice rests in the matter is the family settlement between the parties, which though was never reduced in writing, much less the registration, but in fact it had taken place, and this fact has been ratified/accepted by the respondents 2, 3 and 4 in their written statement supported by the affidavit filed in the Original Suit No. 63/2014, the copy whereof has been placed on the record with the supplementary affidavit of the petitioners. As a result of this family settlement, it has been accepted by these respondents that the petitioners are in consistent and persistent possession as well as in the ownership of the land, in question, from time immemorial. It has further been averred by them that in the questioned land, the petitioners have their residence, cow shelter, polly house, tube well, agricultural equipments house, etc. and they are carrying on their agricultural work/activities thereupon. So, out of such settlement, which had taken place during the lifetime of their ancestors, the land at Lalkuan was put into the possession and ownership of the petitioners, while the land in Punjab was put into the possession of respondents 1 to 5, and pursuant to such family settlement, the petitioners/plaintiffs have relinquished their title/possession and all rights and claim over the land in Punjab and, likewise, all the said respondents had waived their title and all the rights on the land situated in Lalkuan. That apart, Respondents No. 2 to 4 also averred that Sri Kishan Chand executed a Will dated 10.11.1986 as well, in favour of the plaintiffs/petitioners.
18. On the question of family settlement, a celebrated judgment of the Constitution Bench of the Hon'ble Apex Court was rendered in Civil Appeal No.37 of 1968, Kale and others Vs. Deputy Director of Consolidation and others, on 21.1.1976, reported in 1976 (2) Revenue Decisions 69. This judgment was unequivocal on the question of family settlement/arrangement and it is reigning the commands of law in this field even today. The significant points of the judgment are being cited as below:
"......By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity andhomogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire county, is the prime need of the hour. A family arrangement by which the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. 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 those persons who may have some sort of antecedent title, asemblance of a claim or even if they have a spes secessionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle the settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.....
In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions :
(1). The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2). The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3). The family arrangement may be even oral in which case no registration is necessary;
(4). It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17 (2) of the Registration Actand is, therefore, not compulsorily registrable;
(5). 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 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 assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6). Even if bona fide dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement.
A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement."
19. The facts of such case was almost similar to the present controversy, where Kale having failed at three consecutive forums of the lower courts and up to the level of Division Bench of the High Court and even the grant of certificate to appeal before the Supreme Court was denied by the High Court, nonetheless, he knocked the door of Hon'ble Apex Court by way of filing the Special Leave Petition and this celebrated judgment was delivered by the Hon'ble Supreme Court with a direction to the revenue authorities to attest the mutation in accordance with the antecedent family settlement, which had been orally arrived at between the parties and acted upon for several years (In such "Kale" case, the possession of Mr. Kale was only for seven years, but here in the present case, the possession is since more than 30 years). Justice R.S. Sarkaria, who expressed his agreement with the detailed judgment of Hon'ble Justice Fazal Ali that the family settlement between the parties even though oral, but on such basis if the mutation application is moved before the court of Assistant Commissioner, it was merely an information of already completed oral transaction. In this judgment of Hon'ble Apex Court, even the law of England on this point has been referred, as is depicted in Halsbury's Laws of England, Volume 17, Third Edition, at pages 215-16. It was held by the Hon'ble Apex Court on the basis of reference of several other judgments of the Privy Council rendered in (i) Lala Khunni Lal and others vs. Kunwar Gobind Krishna Narain and another, L.R. 38 I.A. 87, 102. (ii) Mt. Hiran Bibi and others vs. Mt. Sohan Bibi, A.I.R. 1914 P.C. 44. The law as above in the field was endorsed and further amplified by Hon'ble Apex Court in Sahu Madho Das and others vs. Pandit Mukand Ram and another, (1955) 2 S.C.R. 22, 42-
43.
20. So, in view of the ratio laid down by the Hon'ble Apex Court and in all the judgments of the Privy Council cited above, the proceedings initially launched under Section 229B of the Act by the petitioner in the Court of Assistant Collector were in the nature of giving information and asking for the mutation. There was no need even for making any service upon the respondent no. 5 and more so, in the circumstances when his address was not known to the petitioners and such fact is well reflected by the conduct of respondent no. 5 Mr. Vijay Kumar by concealing his real address, as has been elucidated hereinabove.
21. As regards the longstanding possession of the petitioners since several decades over the land at Lalkuan is concerned, Mr. Bishan Dutt Joshi, aged 65 years, stated on 21.8.2006 in his examination before the Court of Assistant Collector, that he was residing in Village Bhawan Singh Nawad since 1971 and has his own agriculture there. He has ratified the possession of the plaintiffs/petitioners, over the land in question, for the last 30-35 years. Lekhpal of the area Mr. Mangu Lal examined as PW3 has also deposed that he has always seen the plaintiff's doing agriculture on the land ever since he remained posted in such area from 2004. He never saw anyof the respondents coming on the spot to manifest their possession over the land.
22. Learned Counsel of the respondent no. 5 submitted that the factum of execution of the Will by Kishan Chand as an alternate is being put forth by the petitioners because Section 171 of the Act dealing with the succession between the parties at the time of death of Mr. Kishan Chand contemplates the inheritance to the unmarried daughter only, and not to the married daughter, and there was no unmarried daughter to Kishan Chand at the time of his death. So, the inheritance goes to his brothers, and since Om Prakash and Mathura Dutt were the real brothers of Kishan Chand, hence the land, even in the share of Kishan Chand by way of any family settlement, shall be inherited, after the death of Kishan Chand, by Om Prakash and Mathura Dutt and then further by their sons, who are none other but the respondents.
23. The above contention of learned Counsel of the respondent no. 5 is at the teeth of his own admission by Mr. Vijay Kumar (respondent no. 5) in paragraph 6 of his counter affidavit dated 20.4.2015, wherein he has admitted at least one-third share of the petitioners in the whole property. If by implication of the law of inheritance under Section 171 of the Act, as was prevailing at that time, the married sister could not inherit any property, then how Mr. Vijay Kumar has admitted the one-third share of the petitioners in the whole property. So, now the principle of estoppel applies against him and the entire facts along with relevant evidence, as highlighted by this Court hereinabove, are speaking in so many words that out of the family settlement/arrangement (may be oral), even after the passing away of Shri Kishan Chand, the respondent no. 5 had relinquished all his rights/title over the land at Lalkuan leaving the same in possession and use of the plaintiffs/petitioners since several decades, and they themselves remained in occupation and use of the land in Punjab along with other co-respondents for all practical purposes.
24. Relevant would be to reiterate that the existence of family settlement is further established by the conduct of the parties herein. Learned Counsel for the respondent no. 5 argued that it were the respondents to whom the entire property at Lalkuan devolved after the death of petitioner's father as the petitioner being the married daughter, could not have inherited any interest or title whatsoever after the death of her father. Then firstly why did the respondents not take possession of the property, right after the demise of petitioner's father and oust her from the land in question and secondly if the respondents could not take possession of the land at the time of death of petitioner's father, then subsequently what prevented them to initiate necessary legal proceedings for ejectment of the petitioners like that of Section 209 of the Act is a question which evince that the respondent assented to the continued possession of the petitioners over the land surely in the honour of that family settlement which occurred during the lifetime of their forefathers.
25. Equity further, like a sentinel on qui vive, poses a very simple question to the respondents that as to why they, after the death of petitioner's father in 1992, never took any step to get expunged the name of petitioner from the concerned Khatauni of the land at Lalkuan. What restrained the respondents to get the name of the petitioner removed from the revenue records of the land in dispute is again a question which speaks in volumes about the conduct of the respondents showing nothing else but their acquiescence to the continued possession of the petitioners over the land. Far cry is the ousting of the petitioners from the land. Such conduct of acquiescence was overtly and certainly in the honour of same family settlement much discussed hereinabove.
26. It is difficult to imagine for any person of ordinary prudence that such continued nay almost perennial acquiescence and assent of the respondents towards the petitioners' continued possession could have been possible in absence of a family settlement/arrangement. That is why respondents no. 2 to 4 expressly accepted this fact in their written statement filed in Original Suit No. 63/2014.
27. With these circumstances and long standing conduct of the respondents and keeping in mind the dictum of Hon'ble Supreme Court in the Kales' case (supra), this Court has no hesitation to hold in favour of the existence of a family settlement among the parties which is persisting uptill the day.
28. Learned Counsel of the respondent no. 5 has relied upon a precedent of Hon'ble Apex Court rendered in the case of M. Venkataramana Hebbar (D) by L.Rs. vs. M. Rajagopal Hebbar and others, reported in [2007] SCCR 353, but this case was in the entirely different perspective and the theme of such case was that the defendants were in occupation of the land in question out of some purported family arrangement. When the suit for partition was filed by the plaintiff with the specific averment that defendants had not paid money in respect of such contingent familyarrangement and when the defendants did not deny such assertions in their written statement, so, the Hon'ble Apex Court held that the averments made by the plaintiff, as regards the payment, would be deemed to have been admitted and, since the amount was not paid, the plaintiff had not relinquished his rights in the land through the said family settlement, because no partition had taken place by meets and bounds.
29. In the case in hand, the perspective is quite distinct because the respondent no. 5 along with other respondents had already got the vast land in Jalandhar (Punjab) out of said family settlement and possession/occupation over that land of Jalandhar has been admitted by all the respondents uniformly, whereas the plaintiffs/petitioners have been in occupation/possession over the land at Lalkuan. So, this way, the law cited by learned Counsel for the respondent no. 5 is not at all attracted in the present controversy.
30. In view of what has been elucidated above, I find that there is merit in this petition. It is hereby allowed Ex consequenti with the result the impugned orders dated 17.5.2010, passed by the Assistant Collector, Haldwani, District Nainital in the revenue suit as well as the orders passed on 16.4.2013 and 29.1.2015 by the Additional Commissioner (Kumaon Division), Nainital in the revision, as has been indicated above, are hereby set aside. As a consequence, the order dated 9.1.2007, passed by the Assistant Collector, shall remain effective and in force and the mutation in all revenue records shall be done accordingly.
(Servesh Kumar Gupta, J.) Prabodh
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