Shiv Ram v. Ram Ratan — 1968 DIGILAW 365 (ALL)

JUDGMENT Satish Chandra, J. - One Lala had two sons, Dayal and Ram Dayal. The plaintiff-appellant was the son of Dayal whereas Ram Kishan, defendant-respondent No. 3, was the son of Ram Dayal. Both the parties had a half share in the family property which consisted of the tenancy holding in dispute. On 3rd December, 1959, defendant-respondent No. 3 transferred the plots in dispute, which constituted half of the holding, in favour of defendants-respondents Nos. 1 and 2. The plaintiff grounded his suit for cancellation of this sale on the allegation that on the death of his father Ram Dayal the third defendant Ram Kishan surrendered his half share in the holding in favour of the plaintiff and also left the family home to live with his maternal uncle. Thereafter he had no interest left in the holding. Subsequently the third defendant-respondent filed a suit (No. 1041 of 1955) for partition of the holding. The plaintiff contested the suit and pleaded that the third respondent had no share whatsoever, having surrendered it in favour of the plaintiff. On 30th October, 1956, both the parties entered into a settlement of their dispute. The same clay the suit was decreed in terms of the compromise which formed part of the decree. The compromise stated that the third respondent would be a tenant in possession of the half share in the holding but he will have no right to transfer the plots allotted to him, and, on his death the plots would revert to the plaintiff or his heirs. It was also agreed that the third respondent would not let out the plots to any stranger. If he wanted to do so, he would let them out only to the plaintiff. It was alleged that this compromise was acted upon. The parties entered into possession of the separate plots allotted to them, but, subsequently at the instance of defendants-respondents Nos. 1 and 2 the third respondent went back on his solemn undertaking in the compromise and executed the impugned sale-deed. 2. The defendants-respondents contested the suit on the principal ground that the third-respondent had never surrendered his interest in the holding and that the alleged compromise could not legally restrict the title in the matter of alienation. It was alleged that after the decree in the previous suit the third respondent had acquired bhumidhari rights in the plots allotted to him. The defendants-respondents contested the suit on the principal ground that the third-respondent had never surrendered his interest in the holding and that the alleged compromise could not legally restrict the title in the matter of alienation. It was alleged that after the decree in the previous suit the third respondent had acquired bhumidhari rights in the plots allotted to him. He, therefore, had full power to make an alienation. 3. Both the courts below have dismissed the suit on the finding that the term in the compromise prohibiting the third respondent from parting with or disposing of his interest in the property violated Section 10 of the Transfer of Property Act, 1882, and was for that reason void. The third respondent was conferred full tenancy rights in the plots allotted to him and after having become a bhumidhar thereof he had an unrestrained power of alienation. The courts below have proceeded on the assumption that the compromise between the parties in Suit No. 1041 of 1955 amounted in law to a transfer of property. 4. In the present appeal it has been urged by Mr. K. B. Garg, appearing for the appellant, that Section 10 of the Transfer of Property Act was not attracted to the present case. That provision applies only where a property is transferred subject to a condition of limitation absolutely restraining the transferee from alienating the property. The condition precedent to the applicability of that section was the existence of a transfer. The compromise decree in the previous suit did not in law amount to a transfer of property and was hence not subject to Section 10 of the Transfer of Property Act. 5. It is evident that in the suit of 1955 the present plaintiff was denying the claim of the third respondent to a half share in the holding on the ground that he had surrendered the share in favour of the plain-, tiff. The third respondent on the other hand claimed a half share on the basis of the admitted pedigree between the parties. These rival claims were mutually settled. The two parties were first cousins. The property in dispute was admittedly ancestral. The third respondent on the other hand claimed a half share on the basis of the admitted pedigree between the parties. These rival claims were mutually settled. The two parties were first cousins. The property in dispute was admittedly ancestral. The present plaintiff recognised the claim of the third respondent to the extent that he would be the tenant in possession of the half share in the holding but without any right of alienation and further on the condition that if he wanted to let out the plots he would only let them out to the plaintiff. The third respondent agreed to these conditions and to the further condition that on his death the plots allotted to him would revert to the plaintiff or his heirs. It is thus clear that both the parties were claiming an antecedent title to the property and for maintaining the cordial relations and amity in the family settled their dispute. Such a compromise between the members of a joint Hindu family has always been recognised as a family settlement. A family settlement is favoured by courts and the parties are usually bound down to it. In Ram Charan Das v. Giria Nandini Devi, A.I.R. 1966 SC 323 it was held that 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 consideration for a family settlement is the expectation that such settlement will result in establishing or ensuring amity and goodwill amongst the relations. That consideration having passed by each of the disputants, the settlement consisting of re-cognition of the right asserted by each other cannot be impeached thereafter. On facts the Court held that the compromise decree in substance amounted to a family arrangement and, therefore, binding on all the parties to it. The Supreme Court went on to consider the true nature of a family settlement. It was held that in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who takes benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. It was held that in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who takes benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as. say, affection. The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves is not a transfer. It is not the creation of an interest. 6. In V.N. Sarin v. Alit Kumar Poplai, A.I.R. 1966 SC 432 the Court considered partition of Hindu joint family properties. It was held that such a transaction does not in law amount to a transfer of property. It was observed that each coparcener has an antecedent title to the property though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparcener's had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparcener's in respect of several items of properties allotted to them respectively. That being the true nature of a partition, the contention that partition of an undivided Hindu family property necessarily means transfer of the property to the individual coparcener's cannot be accepted. 7. In the present case both the parties claimed an independent title in the family properties. The claim of one was disputed by the other on the ground of a voluntary act of surrender. In this situation the compromise decree, which provided that some plots would go to one and some to the other party with the conditions mentioned in the agreement, would not be tantamount to a transfer of the property. The claim of one was disputed by the other on the ground of a voluntary act of surrender. In this situation the compromise decree, which provided that some plots would go to one and some to the other party with the conditions mentioned in the agreement, would not be tantamount to a transfer of the property. Cases where .the parties recognise the title of one to the involved properties and agree that the title is the other parties would depend upon the volition and acts of the former, that is to say the title of the other would arise on execution of conveyance etc. by that person in favour of others, may be a transaction evidencing a transfer of property in the course, of a partition. In such a case a transfer of the property arises by virtue of special provisions and acts. The present is not a case of that character. 8. A similar situation arose before the Privy Council in Mata Prasad v. Nageshar Sahai, A.I.R. 1925 PC 272 (279). The members of a family compromised their disputes under it. One party acknowledged the right of the other to inheritance after the death of the former and at the same time bound himself not to alienate the property during her own lifetime. The Privy Council held that the compromise was under the circumstances of the case prudent and reasonable and no party could question it subsequently. 9. In my opinion the compromise decree represented a family settlement between the parties. It was in law not a transfer of property. Section 10 of the Transfer of Property Act would not be applicable to it or govern its terms. The Courts would keep the parties to the bargain freely entered into by them. The third respondent having agreed not to alienate the properties, the deed of sale executed by him on 3rd December, 1959, was incompetent. 10. Mr. Faujdar Rai, learned counsel for the respondents, placed reliance upon Parvathi Pillai Bhageerathi Pillai v. Neelan Nadar Sothi Nadar, A.I.R. 1955 TC 231, that case does not support him. It was held that a family settlement does not come under the purview of Section 10 of the Transfer of Property Act. A condition given in a family partition with restrictions on alienation was held binding. The learned counsel relied on Parnzodha. Singh v. Labh Singh Mehar Singh, A.I.R. 1955 Pun 49. It was held that a family settlement does not come under the purview of Section 10 of the Transfer of Property Act. A condition given in a family partition with restrictions on alienation was held binding. The learned counsel relied on Parnzodha. Singh v. Labh Singh Mehar Singh, A.I.R. 1955 Pun 49. There the compromise was interpreted to be a transfer because of its terms, and, since it contained a restriction on transfer, that term was held to be void as infringing Section 10 of the Transfer of Property Act. The case is distinguishable on facts, because in the present case the settlement does not amount to a transfer. 11. It was also urged for the respondents that during the consolidation operations the plots originally allotted to the third defendant have been taken away and he had been in lieu thereof given a chak consisting of some other plots. After the allotment of a separate chak the third defendant applied to the Settlement Officer for permission to transfer them and was accorded the permission under Section 16-A of the U. P. Consolidation of Holdings Act. The plaintiffs. respondents did not raise any objection there. The transfer could not hence be challenged in the present suit. The plaintiff-appellant contends that he had no notice of these proceedings which were conducted and concluded behind his back. For that reason the plaintiff would not be bound by the order of the Settlement Officer. Further, a perusal of the order shows that is specifically mentioned that the permission does not determine the validity or otherwise of the proposed sale under the U. P. Zamindari Abolition and Land Reforms Act or any other law. Thus, any legal infirmity in the sale was not condoned by the Settlement Officer (Consolidation) . His order could not, therefore, be used in bar to the plaintiff's claim. 12. In the result the appeal succeeds and allowed. The decree is set aside and the suit is decreed with costs throughout.