JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing of the order dated 23.4.1986 passed by the Deputy Director of Consolidation.
2. Brief facts as enumerated in the writ petition are that during the course of consolidation proceedings the property in dispute, i.e., Khata No. 9 of village Dunl Chandpur Pargana and Tehsil Deoband, district Saharanpur was recorded in the basic year Khatauni in the name of Kabja Singh, respondent No. 2, objection under Section 9 was filed by the petitioner claiming herself to be the daughter-in-law of Kabja Singh. She claimed her right on the basis of a family settlement. According to the petitioner, the memorandum of family settlement was recorded on 28.12.1980. The petitioner filed document dated 28.12.1980, examined witnesses and did not examine Kabja Singh. The Consolidation Officer rejected the objection of the petitioner. The petitioner filed an appeal. The Settlement Officer. Consolidation held that the parties were in possession on the basis of the family settlement. The contesting respondent aggrieved by the aforesaid judgment of the Settlement Officer, Consolidation filed a revision before the Deputy Director of Consolidation, which was allowed by the Deputy Director of Consolidation. The petitioner has challenged the order passed by the Deputy Director of Consolidation.
3. The contention of the petitioner is that the document dated 28.12.1980 was not family settlement rather it was a memorandum of family settlement and family settlement had already taken place between the parties and only the memorandum was reduced in writing on 28.12.1980, therefore, this document did not require any registration. The second ground of attack is that the finding was recorded by the appellate court that the family settlement was proved, then this finding of fact should not have been interfered by the Deputy Director of Consolidation in revision. It has further been contended by the learned counsel for the petitioner that the Deputy Director of Consolidation has erred in holding that the family settlement to be invalid as the petitioner's father Kabja Singh was not given any share in the land in dispute and share was given to the petitioner who was not the legal heir during the life time of her husband.
4. A counter-affidavit has been filed. Rejoinder-affidavit is also on record.
5. Heard the learned counsel for the parties and perused the record. From the judgment of the Consolidation Officer, it is apparent that he framed only one issue, i.e., as to whether there was any family arrangement on 28.12.1980 and if it so, what its effect. The petitioner had claimed that she got the property on the basis of the aforesaid family settlement. She examined herself and stated that her father-in-law with a view to avoid any future dispute, partitioned the land during his life time and gave her 66 Bighas of land and she is in possession over that land. She tried to prove the family settlement. The Consolidation Officer found that family settlement on the basis of which the petitioner wants to get her name mutated does not bear the signature of any of the parties to the document nor there is any thumb impression of any one of them rather there is only signature of Kabja Singh. There is no equal distribution of shares also. He also found that Kabja Singh who was the real owner of the property has not been examined before him, therefore, the family settlement has not been proved. He also found that this document has not been proved. He also found that this document cannot be held to be a memorandum of family settlement as under the signature of the marginal witness, Sri Ajab Singh, there is written 29, which is self-contradictory as the family settlement alleged to have been executed on 28.12.1980. Four appeals were filed. Appeal No. 1042/512 was filed by the petitioner. The appellate court decided all these appeals by a common judgment. While deciding the appeal of the petitioner on the point of family settlement, the Settlement Officer, Consolidation observed that it appears that marginal witness, who was an Advocate, Vinder the impression that it is 29th August, wrote figure 29 below his signature. This itself cannot be held to be sufficient to hold that there was no family settlement. He accordingly held that there was family settlement.
6. A revision was filed by Kabja Singh, who was the father-in-law of the petitioner before the Deputy Director of Consolidation. Before the Deputy Director of Consolidation, the question was with regard to the genuineness of the family settlement dated 28.12.1980 and legal question which was to be considered was as to whether it was a family settlement which requires registration or it was only a memorandum of family settlement which does not require any registration under the Registration Act. It was contended on behalf of the respondent that as by the impugned document, there was no partition of the holdings according to the share and law, therefore, it cannot be said to be a family settlement. In reply, it was contended that the document impugned is only a memorandum, therefore, it does not require any registration. The Deputy Director of Consolidation considered the submissions of the petitioner where she has said that her husband does every work of the family but then a question arose as to why he was not party to the aforesaid compromise and why no share was given to him. He held that the document does not divide any share of the parties and it gives rise to the suspicion, therefore, the revision was accordingly allowed. Learned counsel for the petitioner urged that the Deputy Director of Consolidation has no jurisdiction to touch the findings of fact, which was given by the Settlement Officer, Consolidation. He has also urged that he has not considered the oral evidence. For that purpose, he has placed reliance on 1994 RD 290. His submission is that the judgment of the Deputy Director of Consolidation was the judgment of reversal, therefore, he should have considered the statement of the witness and other evidence while setting aside the finding of the Settlement Officer Consolidation, but it has not been done as such the judgment is prima facie vitiated in law. He has further placed reliance on 1978 RD 180, that non production of Kabja Singh as a witness should not have been given much significance as there was other evidence available on record. He further submitted that in view of AIR 1976 SC 803, the memorandum of family settlement does not require registration.
7. Learned counsel for the respondents. Sri N.C. Rajvanshi, submitted that when admittedly the property belongs to Kabja Singh, who was the father-in-law of the petitioner and in the year, 1980 the husband of the petitioner was alive, then there is no explanation as to why the partition was between the father-in-law and daughter-in-law. This gives rise to the doubt that it was a forged document and the father-in-law Kabja Singh had actually executed a document as it bears the signature of Kabja Singh, then why he was not produced before the Court to verify the truth. It is further submitted that Kabja Singh himself was challenging the family settlement, therefore, adverse inference can be drawn against the petitioner. He has further submitted that the document was not a memorandum of family settlement but it was prepared as family settlement itself, therefore, necessarily it requires registration under the provisions of the Registration Act. In reply, Sri S.K. Singh, submitted that as the share has been given to both the parties and the petitioner has been given share which she was entitled to and no excess land has been given to her, therefore, there is no injustice caused to the contesting respondents.
8. After hearing the learned counsel for the parties at length. I am of the view that the sole question involved in this case is that as to whether there was a family settlement and if it was so, when it was arrived at between the parties, and what was given in that family settlement and second question is as to whether the document which has been filed by the petitioner is a document of memorandum of family settlement or family settlement itself. There is no doubt that a family settlement requires registration but a memorandum of the same does not require any registration. The document in question has been filed as Annexure-10 to the writ petition. It is dated 28.12.1998. Prom a perusal of this document, it is apparent that it is said to have been written by Kabja Singh. There is no other person party to this document and a list of plots which are given to the petitioner as well as other persons named therein. It is mentioned in the document that the parties are in possession according to their lots but they have not been entered into the revenue records rather the name of Kabja Singh is entered, therefore, a necessity arose with a view to avoid any family dispute with the property mentioned in the schedule should be mutated in the name of the persons mentioned in the document. It is significant to note that it is mentioned that this should be done through this document and the family settlement is being written which may be used and utilised in future when any occasion arises. So from a perusal of the document, it is clear that a family settlement was written and it was not a memorandum of family settlement though it is mentioned that parties are in possession according to their respective shares. This aspect of the case has not been considered by the Deputy Director of Consolidation. He has not given proper consideration to the document, therefore, unless this document is read as a whole and a finding is given by the authority concerned that this is a family settlement or memorandum of family settlement, it cannot be decided as to whether it requires registration or not. The Settlement Officer. Consolidation has held that it is a family settlement and it is written by Kabja Singh and the petitioner has accepted this judgment, therefore, if the petitioner has not challenged this finding, then the document is proved to be family settlement and if it is family settlement, it requires registration and unless it is done, a document is not admissible in evidence but the Deputy Director of Consolidation has not considered this aspect of the case. He has considered only the effect of not having signature of the parties on the document. On .the point of registration, he has not given any categorical finding, therefore, I am of the view that the judgment of the Deputy Director of Consolidation should be quashed and the case should be sent back to him to decide the controversy, keeping in view this fact what is effect of the judgment of the Settlement Officer. Consolidation by which it has been held that the document is a family settlement and it has not been challenged by the petitioner and then to give a clear cut finding as to whether this document is admissible in evidence for want of registration, if it is not admissible in evidence, then what is its effect on the right, title and interest of parties. As the finding has been arrived at by the Consolidation Officer, Settlement Officer, Consolidation after perusing the document, no further evidence will be permitted by the Deputy Director of Consolidation rather he will hear the parties only on the point mentioned hereinabove and decide the revision.
9. I accordingly, set aside the judgment and order of the Deputy Director of Consolidation and remand the case back to him to restore the revision on its original number and decide it afresh according to the observations made in this judgment. There will be no order as to costs.