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2006 DIGILAW 582 (UTT)

DEO NARAIN SINGH v. STATE OF U. P.

2006-10-13

RAJESH TANDON

body2006
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri P.M.N. Singh, Sr. Advocate, assisted by Ms. Prabha Noliyal, Advocate for the petitioner and Standing Counsel for the respondents. 2. By the aforesaid writ petitions, the then petitioners have prayed for a writ of certiorari quashing the orders and notices issued by the respondents no. 2 and 3. 3. Briefly stated, a notice was issued on 18th October, 1978 under section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act and the petitioners, who are tenure holders have filed the objections against the notice dated 18th October, 1978 stating therein that the notice is time barred and further that land belonging to Sri Jai Prakash has been wrongly clubbed with the land of Sri Dev Narain Singh while declaring the land to be surplus. 4. In paragraph no. 3 of the objection, it has been stated that on 8th June, 1973, when the Uttar Pradesh Imposition of Ceiling on Land Holdings Act was enforced, he was the owner of Khata Khatauni No. 14 Village Kusmoth of Plot Nos. 40, 42, 43/1, 43/2, 44, 45, 46 and 47 having total area of 140 Bigha one Biswa. In the Akar Patra 3-Ga, the land of Khata No. 24 of Plots Nos. 41, 47, 48, 62, 63, 87/2, 88/1, 88/2, 89/2, 90, 91, 92, 83, 94 and 85/2 has been wrongly shown in the ownership of Dev Narain Singh (deceased) as by virtue of family partition land belonging to late Sri Jai Prakash Singh (deceased) has already been shown to be in his possession before 1381 Fasli i.e. before 8th June, 1973 being the sole owner of the land. 5. In paragraph 5 of the objections, it has been stated that on 26th December, 1969, the family partition had taken place i.e. before 24th January, 1971 and from that time, both the Khatas were divided separately and Sri Dev Narain Singh (deceased) has alleged that he has no concern with the said land after the said partition had taken place. In paragraph 5 of the objections, it has been stated that on 26th December, 1969, the family partition had taken place i.e. before 24th January, 1971 and from that time, both the Khatas were divided separately and Sri Dev Narain Singh (deceased) has alleged that he has no concern with the said land after the said partition had taken place. Relevant objections mentioned in paragraphs 3 and 5 are quoted below : ß3- vkifÙk drkZ 8-6-73 dks tc vf/kfu;e ykxw gqvk gS dsoy [kkrk [krkSuh lañ 14 xzke dqleksV ds [ksr lañ 40] 42] 43@1] 43@2] 44] 45] 46] rFkk 47@1 {ks=Qy 140 ch?kk 1 fcLok dks gh Hkw/kj dk”rdkj vafdr gS vkSj dsoy mlh Hkwfe ij {ks=ifr gksus ds dkj.k izLrqr vkdkj i= 3¼x½ esa of.kZr vU; Hkwfe [krkSuh [kkrk la[;k 24 ds [ksr lañ 41] 47] 48] 62] 63] 87@2] 88@1] 88@2] 89@2] 90] 91] 92] 83] 94 rFkk 85@2 xzke dqleksB xyr :i ls fn[kkbZ xbZ gS D;ksafd mDr Hkwfe Jh t; izdk”k flag dks vf/kfu;e izkjEHk gksus vFkkZr 8-6-73l] 1381 Qlyh ls iwoZ ls gh vafdr gksus ds dkj.k rFkk mudh rugk lEifÙk muds Lo;a ds vf/kdkj ls gksus muds dCts esa rFkk miHkkx esa gksus ds dkj.k xyr :i ls fn[kkbZ xbZ gSA ftlls vkifÙk drkZ dk dksbZ lEcU/k ugha gSA 5- D;ksafd vkifÙkdrkZ dh leLr Hkwfe dks ftyk nsofj;k rFkk ftyk uSuhrky dh gS iSf=d lEifÙk gksus ds dkj.k vfoekU; fgUnw ifjokj dh Hkwfe gksus ds dkj.k ikfjokfjd caVokjk }kjk vkfcZVªs”ku rFkk rnUrj U;k;ky; }kjk caVokjs ls 24-1-71 ds iwoZ fnukad 26-12-69 dks gh xbZ Fkh vkSj mlh le; ls vyx vyx rFkk ,d nwljs ls vlEcU/k gS vkSj rnUrj vñtksñlhñ vf/kfu;e 18 lu~ 1973 ds izkjEHk esa iwoZ gh U;k;ky; Jheku~ U;kf;d vfèkdkjh uSuhrky dks foHkkftr gksdj vyx vyx [kkrksa esa vafdr rFkk vyx vyx miHkksx esa pyh vk jgh gS ftldk ,d nwljs ls dksbZ lEcU/k ugha gSAÞ 6. Prescribed Authority vide his order dated 30th March, 1983 has declared the surplus land to the extent of 5.17 Hectare and has ignored the family partition. 7. Aggrieved by the aforesaid order passed by the prescribed authority, the then petitioner in Writ Petition No. 3056 (ms) of 2001 preferred Ceiling Appeal being Ceiling Appeal No. 50 of 1988 (Dev Narain Singh Vs. State of U.P. and another). 7. Aggrieved by the aforesaid order passed by the prescribed authority, the then petitioner in Writ Petition No. 3056 (ms) of 2001 preferred Ceiling Appeal being Ceiling Appeal No. 50 of 1988 (Dev Narain Singh Vs. State of U.P. and another). During the pendency of the appeal, Sri Jai Prakash Singh (deceased) has also filed his cross-objection stating therein that he has been in exclusive and cultivatory possession of the said land. 8. Before the appellate authority, the petitioners have submitted that the provisions of Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Act being mandatory and the entire proceedings in absence of notice to Jai Prakash Singh (deceased) are without jurisdiction and further his name having already been recorded in the revenue records prior to 8th June, 1973, therefore, the land cannot be clubbed with the land of Deo Narain Singh (deceased). 9. The appellate Authority has relied upon the statements made in CLH Form-3 and having not found the name of Jai Prakash in the revenue records for 1378, 1379 and 1380 Fasli the appeal and cross objection was decided against Dev Narain Singh and Jai Prakash Singh. 10. Counsel for the petitioners has submitted that Sri Dev Narain Singh (deceased) has no concern with the land and late Sri Jai Prakash Singh being the tenure-holder, he was entitled for the notice under Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Act, since no notice has been given, the entire proceeding is wholly illegal and further merely the findings that the name in 1378 Fasli having not been recorded, there is no reason to discard the family partition. 11. Appellate Court has dismissed the appeal. Hence the present writ petitions have been filed. During the pendency of the writ petitions, Sri Dev Narain Singh and Jai Prakash Singh have expired and have been substituted by Sri Sanjeev Kumar Singh, Manoj Kumar Singh and Ritesh Kumar Singh and in both the writ petition. 12. Counsel for the petitioner has vehemently argued that the appellate Court has completely ignored the Khatauni, which has been filed along with the Supplementary Affidavit which has also a reference of the order of the Revenue Court dated 17.01.1973. Paragraph 4 to that effect is quoted below : “4. 12. Counsel for the petitioner has vehemently argued that the appellate Court has completely ignored the Khatauni, which has been filed along with the Supplementary Affidavit which has also a reference of the order of the Revenue Court dated 17.01.1973. Paragraph 4 to that effect is quoted below : “4. That the copies of Khatauni of 1379 F and 1380 F along with the judgment of revenue court dated 17.1.73 were duly placed before the learned 1st Additional District Judge but he has wrongly stated in his judgment that petitioner’s name was not recorded as tenure holder in 1379 and 1380 F respectively. Thus the finding of learned 1st Additional District Judge are preverse and based on misreading of evidence on record.” 13. A copy of the Khatauni has also been enclosed with the Supplementary Affidavit. The same is quoted below : vkns”kkuqlkj Jheku thñvksñ egksn; uSuhrky gY}kuh fuñ uañ 29@3 lañ 72&73 fnukad 17-1-73 ds Jh nsoukjk;.k flag ds [kkrs dk gktk caVokjk bl izdkj ntZ gS fd uEcj 1 Jh nsoukjk;.k flag iq= Jh loZnsoflag ds uke jDck 266@4 yxku 83-19 iSls crkSj fljnkjh ds vLi’V uEcj 40 feñ jDck 35@2- uañ jDck yxku 42 14 43@1 19 43@2 10@1 --------------------------------------------- 44@3 9@3 44@2 5 45 9 46 feñ 99@2 133@2 49-60 NwV ugha nh xbZ gñ vLi’V 22@9@73 crkSj lhjnkjh ds ntZ gks- uañ 2 Jh t;izdk”k flag iq= Jh nsoukjk;.k flag ds uke uañ jDck yxku 46 feñ 9113 47@1 8 48@1 2 62@ 3-II 87@2 9 88@2 17 88@1 3-II4 89@1 1@56 89@2 1 90 13@3 91 1@3 92 42 93 1II1 94 11I3 95 III1 133@3 41-56 NwV ugha nh xbZ crkSj fljnkj ds ntZ gks gñ vLi’V 22-9-73Þ 14. Rejoinder affidavits have also been filed by the petitioners in both the writ petitions stating therein that the competent authority has passed the order on 17.01.1973 and the name of the petitioners were recorded in the revenue records for 1379 to 1380 F and hence late Sri Jai Prakash was entitled to get notice under Rule 8 of U.P. Imposition of Ceiling on Land Holdings Act and further the family settlement does not require any registration. Rejoinder affidavits also contain the aforesaid entries. There is no rebuttal on the record on behalf of the State regarding these entries. 15. Rejoinder affidavits also contain the aforesaid entries. There is no rebuttal on the record on behalf of the State regarding these entries. 15. In view of the above, counsel for the petitioners has submitted that there is no occasion to ignore the partition deed as well as entries of 1379 and 1380 F as well as the order dated 17.1.1973 regarding the partition of two brothers. 16. Both the parties have filed the written arguments. Ceiling area has been defined, which means the area of land as determined in accordance with Section 5. Sub Clause (2) of Section 3 reads as under : “(2) ‘ceiling area’ means the area of land not being land exempted under this act, determined as such in accordance with the provisions of Section 5; Sub Clause 7 of Section 3 deals with the family. It reads as under : (7) ‘family’ in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters);” Sub Section 11-A of Section 3 defines the adult. It reads as under : “[(11-A) ‘Adult’ means a person who has attained the age of 18 years, and ‘Minor’ means a person who is not an adult;] Sub Clause (1) of Section 5 relates to the imposition of ceiling. It reads as under : “[5. Imposition of ceiling. — (1) [On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment Act, 1972], n tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. [Explanation I. — In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, of ostensibly in the name of any other person, shall be taken into account. Explanation II. [Explanation I. — In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, of ostensibly in the name of any other person, shall be taken into account. Explanation II. — [If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date] either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or license or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.]” Clause (a) of Sub-section (3) of Section 5 provides the ceiling limit of a tenure holder of a family of not more than five members to the extent of 7.30 hectares of irrigated land and thereafter, Clause (b) relates to the case of more than five members and apart from 7.30 hectares of irrigated land, each of the members shall be allowed to possess two hectares of irrigated land. Clause (a) and (b) of Sub-section 3 of Section 5 reads as under : “(a) in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregated to two hectares, for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land; (b) in the case of a tenure-holder having family of more than five members, 7.30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure-holders or who hold less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of six hectares of such additional land. Explanation. — The expression ‘adult son’ in clauses (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure-holders or who hold land less than two hectares of irrigated land; (c) [Omitted] (d) [Omitted] (e) in the case of any other tenure-holder, 7.30 hectares of irrigated land. (substituted by U.P. Act No. 2 to 1975 w.e.f. 08.06.1973). Explanation. (substituted by U.P. Act No. 2 to 1975 w.e.f. 08.06.1973). Explanation. — Any transfer or partition of land which is liable to be ignored under sub-sections (6) (7) shall be ignored also — (p) for purposes of determining whether an adult son of a tenure-holder is himself a tenure-holder within the meaning of [clause (a) or clause (b) of this sub-section]; (q) for purposes of service of notice under Section 9.” Sub Section (6) of Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act provides an explanation, which has been inserted w.e.f. 8th June, 1973, provides as under : [Explanation I. — for the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971 includes — [(a) a declaration of a person as a co-tenure holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971]; (b) any admission acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner]. Explanation II. — The burden of providing that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit].” Sub Section (7) of Section 5 specially clause (b) relates to the partition of a holding. It reads as under : “(7) In determining the ceiling area applicable to a tenure-holder, any partition of land made after the twenty-fourth day of January, 1971, which shall be ignored and not taken into account : Provided that nothing in this sub-section shall apply to — (a) [* * *] (b) a partition of a holding made in a suit or a proceeding pending on the said date:” 17. As will appear from the Explanation II given in sub clause (1) of Section 5 that the land shall be held to be continue by a person, if the same was continuing on or before January 24, 1971. 18. A perusal of the pleadings of the parties establishes that Jai Prakash Singh (deceased) got separate share by virtue of the family partition executed on 25th June, 1969. 18. A perusal of the pleadings of the parties establishes that Jai Prakash Singh (deceased) got separate share by virtue of the family partition executed on 25th June, 1969. As will appear from the record that by partition two separate shares of late Dev Narain Singh and late Jai Prakash Singh were declared by virtue of the order passed in Case no. 27/2 of 72-73 on 17th January, 1973 mentioned in the Khatauni and as such the partition have been affected and acted upon before 8th June, 1973, as substituted by U.P. Act No. 2 of 1975. 19. Counsel for the petitioners has referred Rule 8 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961, which reads as under : “[8. As soon as may be, after the expiry of thirty days from the date of publication of the general notice in C.L.H. Form 1 in the official Gazette, the Prescribed Authority shall cause to be served upon every tenure-holder, who has failed to submit the statement in C.L.H. Form 2 or has submitted an incomplete or incorrect statement, a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3, prepared under Rule 6 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct : Provided that where the statement in C.L.H. Form 3 also includes land ostensibly held in the name of any other person, the prescribed authority shall cause to be served upon such other person a notice in C.L.H. “Form 4 together with a copy of the statement in C.L.H. Form 3 calling upon him to show cause within a period of fifteen days from the date of service of the notice why the aforesaid statement be not taken as correct : Provided further that in the case of a tenure-holder who is a member of the Armed Forces (Military, Naval or Air Force) of the Union of India, the period within which he will be called upon to show cause why the statement in C.L.H. Form 3 be not taken as correct, shall be ninety days from the date of service [if the notice in C.L.H. Form 4.]” 19. In Shantanu Kumar Vs. In Shantanu Kumar Vs. State of U.P. and others 1979 (5) ALR 564 (F.B.), Full Bench of Allahabad High Court has observed as under : “Rule 8 provides for service of notice on every tenure-holder to show cause within fifteen days why the aforesaid statement prepared by the Prescribed Authority be not taken as correct. Proviso to this rule then provides. “Provided that where the statement in C.L.H. Form 3 also includes that ostensibly held in the name of any other person, the prescribed Authority shall cause to be served upon such other person a notice in C.L.H. Form 4 together with a copy of the statement in C.L.H. Form 3 calling upon him to show cause within a period of 15 days from the date of service of the notice why the aforesaid statement be not taken as correct........” It is thus evident that the notice requiring the tenure-holder to show cause why the statement prepared by the Prescribed Authority be not taken as correct is to be issued to the tenure-holder in respect of whose holding the statement has been prepared. Under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land included in C.L.H. Form 3 is ostensibly held. The Prescribed Authority prepares the statement on the basis of revenue records. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H. Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used in ‘shall cause to be served’. The petitioner claimed under a sale-deed. It is not disputed that the petitioner’s name was recorded in the revenue papers over the land which was transferred to him. It is admitted that the statement in C.L.H. Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct. It is obvious that service of such a notice is preliminary to the acquisition of jurisdiction to proceed in the matter and decide whether the land ostensibly held in the name of the petitioner could be declared as surplus land in the hands of Bhupendra Singh. In the premises, the proceedings were without jurisdiction and void. Learned Standing counsel submitted that the petitioner had knowledge and he should have filed an objection under Section 11(2) of the Act as has been held by a Division Bench of this Court in Dilbagh Singh V. The State of Uttar Pradesh and another (supra). The existence of another remedy under the Act cannot validate the proceedings which are void for lack of jurisdiction and which have resulted in the declaration as surplus land of an area which a person other than the tenure-holder who has been heard, claims. The fact that the petitioner could have filed an objection under Section 11(2) will not breath life into or validate the deed proceedings.” 20. Relying upon Shantanu Kumar V. State of U.P. and others 1979 (5) ALR 564 (F.B.) in Smt. Bhagati Devi V. Addl. Commissioner, Jhansi (Alld. H.C.), it has been held as under : “6. In support of his contention, the learned counsel for the petitioner relied upon a decision in Shantanu Kumar v. State of U.P. and others 1979 (5) ALR 564 (F.B.), wherein, a Full Bench of this Court, comprising of Hon’ble Mr. Satish Chandra, Chief Justice (as His Lordship then was), Hon’ble Mr. Justice Yasoda Nandan and Hon’ble Mr. Justice A. Banerjee, had held as follows : “The petitioner claimed under a sale-deed. The petitioner’s name was recorded in the revenue papers over the land which was transferred to him. The statement in C.L.H. Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. The petitioner’s name was recorded in the revenue papers over the land which was transferred to him. The statement in C.L.H. Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct.” 8. In view of the facts and circumstances of the instant case, I am of the view that the order passed by the Prescribed authority, clubbing the land of petitioner No. 1 with the land of father of the petitioner No. 2, suffers from inherent infirmity of law, as admittedly, at the material point of time, i.e., on 24.1.1971, the land stood transferred to petitioner No. 1. This transfer not only took place much before the material date, i.e. 24.1.1971, but also the petitioner No. 1 took over possession over the same in 1955 itself. Thus, the impugned order is clearly in contravention of Section 5 (6) of the Act. There is, therefore, force in the submission of the learned counsel for the petitioner.” 21. Counsel for the petitioners has referred the judgment in Jamil Ahmad and others Vs. Vth Additional District Judge, Moradabad 2001 (92) RD Page 851, where the Apex Court has held that while computing the ceiling area, the land held by the individual as on 8th June, 1973 has to be determined. Relevant paragraphs 12 and 13 are quoted below : “12. We make it clear that in the computation of the ceiling area under the provisions of the Act what is relevant is the land held by the individual as on June 8, 1973. But it is a continuous process. On subsequent acquisition of land by an individual either by purchase or by succession or otherwise, the authorities will have to determine afresh his ceiling area as on the date of acquisition of land. From the material placed before us, it appears that the lands which late Wali Mohammed was entitled to hold was determined and excess land of 8.14 acres was declared by the prescribed authority, which was reduced by the appellate authority to 2.47 acres by order dated October 25, 1975. From the material placed before us, it appears that the lands which late Wali Mohammed was entitled to hold was determined and excess land of 8.14 acres was declared by the prescribed authority, which was reduced by the appellate authority to 2.47 acres by order dated October 25, 1975. From out of the land which Wali Mohammed was entitled to hold pursuant to the final determination of his Khata he bequeathed acres 25.32 in favour of the appellants who would be entitled to that under the Will subject to their ceiling limit. The property’ bequeathed by a deceased person cannot be added to the share of his heirs for computing their Khatas albeit it can be added to the Khata of the legatee. 13. From the record it is not clear as to how much extent late Wali Mohammed was entitled to hold and how much extent Gulam Mohammed got by way of inheritance which alone could be added to the land already held by him. The High Court took the view that by making a Will the declarant cannot reduce his ceiling area. We think no exception can be taken to the said statement of law provided the determination of the ceiling area under consideration is that of the testator. But if the determination relates to his successors/heirs either by intestate succession or testamentary succession the said proposition will not be apt. In the instant case, the Will was executed by late Wali Mohammed. In computing the ceiling area of his heirs Gulam Mohammed and Moti Begum the land given by Will to the appellants (legatees) will have to be excluded before the actual area of the land inherited by the said heirs is worked out.” 22. Admittedly before 8th June, 1973, the family partition was acted upon by the judicial order and therefore, the land belonging to Dev Narain Singh having been partitioned, the land belonging to Dev Narain Singh cannot be clubbed with the land of Jai Prakash Singh so far as the determination of the ceiling limit is concerned as contained under Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act. 23. The question with regard to the family partition came up for interpretation in Hari Shankar Singhania & Ors. Vs. Gaur Hari Singhania & ors. 2006 AIR SCW 3330. where the Apex Court has interpreted the family arrangement. 23. The question with regard to the family partition came up for interpretation in Hari Shankar Singhania & Ors. Vs. Gaur Hari Singhania & ors. 2006 AIR SCW 3330. where the Apex Court has interpreted the family arrangement. Relevant paragraphs of the aforesaid case are quoted below: “43. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eyes of law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the Courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well being of a family. 44. The concept of ‘family arrangement or settlement’ and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation etc. should not be put at risk of the implementarion of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into ally disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a clim or some other ground, as say affection, may suffice as observed by this Court in the case of Ram Charan v. Girija Nandini, AIR 1966 SC 323. 45. In Lal Khunni Lal v. Kunwar Gobind Krishna Narain, the Privy Council examined that it is the duty of the courts to uphold and give full effect to a family arrangement. 46. In Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr. 1955 (2) SCR 22 [Vivian Bose, Jagannadhadas and BP Sinha, JJ.] placing reliance on Clifton v. Cockburn, (1834) 3 My & K 76 and William v. William (1866) LR 2 Ch 29, this Court held that a family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. 1955 (2) SCR 22 [Vivian Bose, Jagannadhadas and BP Sinha, JJ.] placing reliance on Clifton v. Cockburn, (1834) 3 My & K 76 and William v. William (1866) LR 2 Ch 29, this Court held that a family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. It was held that “so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement..” 47. The real question in this case as framed by the Court was whether the appellant/plaintiff assented to the family arrangement. The court examined that “the family arrangement was one composite whole in which the several disposition formed parts of the same transaction.” 48. In Ram Charan Das v. Girijanadini Devi, (supra), this Court observed as follows : “Courts give effect to a family settlement upon the broad and general ground that this object is to settle existing or future dispute regarding property amongst members of a family....... The consideration for such a settlement will result in establishing or ensuring amity and good-will amongst persons bearing relationship with one another.” 24. The Apex Court in Hari Shankar Singhania & Ors. V. Gaur Hari Singhani & Ors . (supra) has also relied upon the judgment of the Apex Court in Kala and Ors. Vs. Deputy Director of Consolidation & Ors (1976) 3 SCC 119 and has observed as under : “50. Further in Krishna Biharilal v. Gulabchand, (1971) 1 SCC 837, this Court reiterated the approach of courts to lean strongly in favour of family arrangements to bring about harmony in family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. This approach was again re-emphasised in S. Shanmugam Pillai v. K. Shanmugam Pillai (1973) 2 SCC 312 where it was declared that this court will be reluctant to disturb a family arrangement. 51. This approach was again re-emphasised in S. Shanmugam Pillai v. K. Shanmugam Pillai (1973) 2 SCC 312 where it was declared that this court will be reluctant to disturb a family arrangement. 51. In Kale & Others v. Deputy Director of Consolidation and others (1976) 3 SCC 119 [VR Krishna Iyer, RS Sarkaria & S. Murtaza Fazal Ali, JJ.] this Court examined the effect and value of family arrangements entered into between the parties with a view to resolving disputes for all. This Court observed that “By virtue of a family settlement or arrangement members of a familydescending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles one 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 strives which mar the unity and solidarity of the family and create hatred and bad 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 and homogeneity of the family which ultimately result in the unification of the society and therefore, of the entire country, is the prime need of the hour........ the Courts have, therefore, learned 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 suffer from a legal lacuna or a formal defect the rules 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..... The law in England on this point is almost the same.” 52. The valuable treatise Kerr on Fraud at p. 364 explains the position of law, “the principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. The law in England on this point is almost the same.” 52. The valuable treatise Kerr on Fraud at p. 364 explains the position of law, “the principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.” Halsbury’s Laws of England, Vol. 17, Third edition at pp. 215-216. 53. In KK Modi v. KN Modi & others. (1998) 3 SCC 573 (Sujata Manohar & DP Wadhwa, JJ), it was held that the true intent and purport of the arbitration agreement must be examined — (para 21). Further the court examined that “......a family settlement which settles disputes within the family should not be lightly interfered with specially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to 1995 the Memorandum of Understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed.” 25. In Chumman Lal Shah v. State of Uttar Pradesh and others W.P. No. 478 of 1977 decided on 12th April, 1979 reported in 1980 (2) R.D. Page 7 Summary of Cases, it has been observed as under : “Sub section 7 deals with partition decree passed after 24.1.1971. As the partition decree was passed prior to this date the sub-section did not apply. Nor did the provisos apply as the suit for partition or proceeding was not pending on 24.1.1971. The learned State Counsel argued that petitioner’s case was covered by Explanation I and II to sub-section I of the Act. It may be so but those explanations apply on certain facts. Nor did the provisos apply as the suit for partition or proceeding was not pending on 24.1.1971. The learned State Counsel argued that petitioner’s case was covered by Explanation I and II to sub-section I of the Act. It may be so but those explanations apply on certain facts. For instance for applicability of Explanation I there has to be evidence that the land was held by the petitioner in his own right. Similarly before any assistance can be derived from Explanation II it has to be established that the land was in actual cultivatory possession of the petitioner and that name of his sons was mutated after 24.1.1971.” 26. In M/s Taraknath & another Vs. Sushil Chandra Dey by Lrs. & Ors. JT 1996 (5) S.C. 272, the Apex Court has observed as under : “The property admittedly belonged to father Syed Md. Mahibullah who died in 1954, thereby all the brothers and sisters become owners to the extent of their shares they had succeeded to the property. Thus all of them are co-owners. It would be open to the sisters to relinquish their right by way of gift, even oral, which is valid in personal law.” Since the tenant has been in occupation, it would be constructive delivery of the possession. Delivery of the physical possession to the brothers. In the circumstances, is not warranted. As regards the family settlement of the brothers, it would be open to the brothers to resolve the prospective dispute by way of family settlement. The brothers having agreed for the settlement, thought they have impleaded as party-respondents to the suit, they have not challenged the family settlement nor have they contested the validity thereof.” 27. In Roshan Singh and others Vs. Zile Singh and Ors. AIR 1988 SC 881, the Apex Court has observed as under : “9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17(1) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. 16. In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration.” 28. As will appear from the facts of the present case that name of late Sri Jai Prakash has already been recorded before the amendment has come into force i.e. 8th June, 1973 and therefore, late Sri Jai Prakash having acquired the status of co-tenure holder, the notice issued to late Sri Dev Narain Singh alone, therefore, ipso facto being illegal, the impugned orders are liable to be set aside. 29. In view of the above coupled with the subsequent events, where grand-sons in the case of Dev Narain Singh and sons in the case of Jai Prakash Singh have been substituted, there will be no surplus land left with the petitioners and the notices under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act is liable to be quashed. 30. Since there is no need of registration of the family partition and the family partition had taken place and was duly incorporated before 08.06.1973, no surplus land is left with the petitioners. 31. Consequently, the orders-dated 30.03.1983, 03.05.1985 along with the notice dated 23.10.1974 are quashed. 32. Both the writ petitions are allowed. No order as to costs.