Primacy To Be Given To Family Settlement Between Co-Tenure Holders In Partition Suit: Allahabad High Court

The Allahabad High Court held that in case it was found that there was a family settlement between the co-tenure holder, then primacy has to be given to such a settlement, the property ought to be partitioned on the basis of the same, if the same has been arrived in bona fide manner.

The Bench of Justice Alok Mathur observed, “This Court, upon considering various judgments of the Supreme Court as well as provisions of the Revenue Court Rules, is of the considered opinion that 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.”

Advocate Mohammad Aslam Khan represented the Petitioner, Advocate Pankaj Gupta represented the Respondent.

Case Brief

A Writ Petition was filed assailing from the order of the Board of Revenue as well as the Court. A Suit was filed in the e Court of Sub Divisional Magistrate stating that suit property was the ancestral property of Petitioner and other Private Respondents.

It was contended in the Plaint that an oral partition has already taken place between all the tenure holders, but with regard to payment of revenue rent and exact location of their plots is a constant dispute occurring between the parties, thereby, they sought a legal partition. Accordingly, a decree was drawn.

Thereafter, an appeal was filed before the Commissioner, that the partition had been done in clear violation of the statutory provisions contained in U.P. Revenue Code Rules and the appellants claim their rights to the portion of the land in equal share which fell adjacent to the District highway and, therefore challenged the validity of the Kurra prepared by the Lekhpal.

The Commissioner held that there had been Vahami Batwara (oral partition) between the parties, and the same was admitted by all the parties and further all the parties are in possession of the shares allotted to them as per the said settlement. The Board of Revenue had also held that the property was in joint possession of all the tenure holders, and the shares of individual tenure holders can be determined only by a legal petition.

It was contended by the Petitioners that the Board of Revenue had committed a manifest error of law and fact by not adequately considering the aspect of family settlement, and on the other hand, relying on provisions of the U.P. Revenue Code Rules, 2016 to set aside the order of the trial Court.

Court’s Observation

The High Court noted that there was an oral partition between the parties and referred to certain sale deeds, emphasising that sale deeds described the land in metes and bounds, and they did not merely sell only their share in the property.

The question before the High Court was whether, when a partition has already taken place amicably between the co-sharers, should the Court proceed to partition the property again?

The High Court underscored the object of family arrangement stating that it was to protect the family from long-drawn litigation and perpetual strife. A family arrangement by which the property was equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few was undoubtedly a milestone in the administrating 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, a semblance of a claim or even if they have a specific successions 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 High Court observed.

The High Court said that in order to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

1. The family settlement must be a 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.

Further, the High Court observed, “This Court, upon considering various judgments of the Supreme Court as well as provisions of the Revenue Court Rules, is of the considered opinion that 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.”

Thus, the Court held that in case it is found that there has been a family settlement between the co-tenure holder, then primacy has to be given to such a settlement, the property ought to be partitioned on the basis of the same.

Accordingly, the writ petition was allowed and the e judgment of the Board of Revenue was set aside, and the judgments of the Sub Divisional Magistrate dated and appellate Court dated 21/12/2021 were affirmed

Cause Title: Shahadat Ali and Anr V. Board of Revenue, UP & Ors. (Neutral Citation:2025:AHC-LKO:51495)

Appearance:

Petitioner: Advocates Mohammad Aslam Khan, Faiz Ahmad Khan

Respondent: Advocates Pankaj Gupta, Pt. Devesh Kumar Mishra, Dr. Krishna Singh

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