[UP Revenue Code] Primacy Must Be Given To Family Settlement Acted Upon By Co-Tenure Holders In Partition Dispute: Allahabad HC

The Allahabad High Court has held that in a partition dispute under the U.P. Revenue Code. 2006, primacy must be given to family settlement which has been acted upon by the co-tenure holders.Justice Alok Mathur held, “Primacy has to be given to family settlement, which has been acted upon, and the co-tenure holders are in possession of their respective shares. In case there is no dispute between the parties with regard to the family settlement, the Kurras has to be prepared to take into consideration the family settlement, which is duly recognised in sub Rule (g) of Rule 109 (5) of the Rules, 2016.”Kurras, in Uttar Pradesh, means a detailed map outlining divided and delineated shares of co-tenure holders in a partitioned property. Lekhpal prepares the Kurra as per Rule 109(5) of the Revenue Court Rules, 2016. Opposite Party No.2 filed a partition suit on grounds that though oral partition had taken place between the parties, there was constant dispute between them regarding the payment of land revenue. Since the defendants, therein, pleaded that family partition had taken place, a preliminary decree was drawn demarcating the shares of tenure holders and Kurra was ordered to be prepared. In the final decree, the Sub Divisional Magistrate recorded that each party had been given its share according to the family partition and had constructed houses on the same. It further recorded that some of the co-tenure holders had sold their lands and the sale deed described clearly demarcated boundaries. The objections filed by the plaintiff were rejected. Accordingly, he filed an appeal before the Commissioner, Devi Patan Division, Gonda.The Additional Commissioner dismissed the appeal on grounds that there was a “Vahami Batwara” (partition deed) between the parties and they were all in possession of their lands according to the partition. It was also recorded that the appellant had himself sold his land describing the mets and bounds in the plot. Aggrieved, appellant approached the Board of Revenue. Board of Revenue set aside the order of the Additional Commissioner, Devi Patan Division, Gonda and the order of the Sub Divisional Magistrate, Mahsi, Bahraich and remanded the matter for fresh consideration holding that the property was in joint possession of all tenure holders and partition could only be done by law. This order of the Board of Revenue was challenged before the High Court. The Court observed that the family settlement (partition) was accepted by the plaintiff and was not contested at any point. It noted that the all the sale deeds produced before the Court clearly recorded the land by mets and bounds and did not mention sale of share without specifically describing the property. Observing that the object of family settlement is to save the family from long litigation, the Court observed “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 a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.”The Court laid down the essentials of a family settlement as : it must be bonafide to resolve family dispute and provide fair and equitable division or allotment of properties amongst family members, voluntary (free from fraud, coercion or undue influence), may be oral and unregistered, or written and registered. Applying the principles, the Court held that the partition was in terms of the Vahami Batwara and at no stage was the same challenged. It held that the Trial Court had taken into account all the facts while passing the final decree. It was held that the plaintiff himself had purchased his brother's distinctly defined share in the property under consideration. Accordingly, it was held that the order of the Board of Revenue was erroneous and was set aside and the partition was upheld. Case Title: Shahadat Ali And Another Versus Board Of Revenue, U.P., Lko. Thru. Member And 8 OthersClick Here To Read/Download Order

[UP Revenue Code] Primacy Must Be Given To Family Settlement Acted Upon By Co-Tenure Holders In Partition Dispute: Allahabad HC

Upasna Agrawal

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