CHAUHAN, J. - (1.) THE instant writ petition has been filed against the judgment and order of the Board of Revenue dated 26.6.1989 (Annex.2), by which the judgment and order of the Ceiling Authority dated 20.3.1986 has been up-held on different grounds not agreeing with the grounds on which the said Authority had assessed the predecessor-in-interest of the petitioner and also against the review petition dismissed by the Board of Revenue vide judgment and order dated 14.8.89 (Annex.3).
(2.) THE facts and circumstances giving rise to this case are that one Ujagar Singh, the predecessor-in-interest of the present petitioners, was assessed under the Ceiling Law (Chapter III of the Rajasthan Tenancy Act, 1955) and the Authority, vide order dated 31.8.1971, dropped the proceedings holding that there was no surplus land with him. After commencement of the new Act, i.e. the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, the proceedings were re-opened under the provisions of Sec. 15(2) and Ujagar Singh was assessed and the assessment order dated 30.3.86 was passed declaring that he possessed 74.15 Bighas land excess to the ceiling area. Being aggrieved and dissatisfied, petitioners preferred the appeal before the Board of Revenue which was decided vide judgment and order dated 26.6.89. THE reasoning given by the Prescribed Authority was not accepted by the Board of Revenue but it based the decision on the ground that the said assessee Ujagar Singh had transferred the land measuring 99.14 Bighas to his four sons, viz., Jang Singh, Chand Singh, Nand Singh and Harnek Singh, who are petitioners before this Court in equal shares, vide Settlement Deed dated 19.5.1955. Though the said settlement deed was prior to 25.2.1958 but the Authority did not recognise it and included the said land also while assessing the ceiling area of the said assessee Ujagar Singh and treated his sons as members of his family. THE Board of Revenue held that as on 1.4.1966 Ujagar Singh was having 67.17. Bighas land excluding the land already transferred to his four sons by Settlement dated 19.5.1955 and his sons cannot be included as his "family" only for the reason that they could not have been dependant upon him after the said settlement and there were only two family members, he was entitled to retain only 46.8 Bighas of land and, thus, 21.9 Bighas of land was declared surplus. Hence this writ petition. The sole contention raised in this petition is: whether the "settlement deed" dated 19.5.1955 makes his sons independent and whether they are entitled to be included in the "family" of Ujagar Singh as on 1.4.1966, as the matter is to be considered with reference to the said appointed date. (Vide Bansidhar vs. State of Rajasthan (1); Smt. Durga Devi & Ors. vs. Board of Revenue & Ors. (2); Raghunath Laxman Wani vs. State of Maharashtra (3); and Kesari Lal vs. S.D.O., Ramganjmandi & Ors. (4). The Board of Revenue, in the impugned judgment as well as in the judgment on review petition, has categorically held that by the settlement deed dated 19.5.1955, Ujagar Singh had partitioned the land measuring 99.14 Bighas in his four sons and it was their own case before the Board of Revenue that the assessee Ujagar Singh had partitioned the land by way of settlement to his four sons in equal shares and kept the remaining land with him. Thus, the only question involved herein is as what is the meaning of "Settlement." "Settlement" means an instrument (other than a Will or Codicil as defined in the Indian Succession Act) whereby the destination or devolution of successive interests in movable or immovable property is disposed of or is agreed to be disposed of (vide Sec. 2 of the Specific Relief Act, 1963). Similarly, "settlement" has been defined as any non-testamentory disposition in writing of movable or immovable property made for the purpose of distributing property of the settler, i.e. among his family members or for the purpose of providing for some person dependent on him and it also includes an agreement in writing to make such a dispositions. (Section 2 (24) of Stamps Act, 1899). In Commissioner of Gift Tax, Madras vs. N.S. Getty Chettiar, (5), the Apex Court considered the term "family settlement" in the context of Gift Tax Act, 1958 and held that it does not amount to gift or transfer for the reason that settlement means settling the property, right or claim-conveyance or disposition of property for the benefit of another. While deciding the said case, the Apex Court relied upon its earlier judgment on Commissioner of Income Tax vs. Keshavalal Laloobhai Patel (6), wherein the settlement among the family members was considered as a partition of family properties not amounting to transfer of property in strict legal sense.
(3.) IN Ramcharan Das vs. Girja Nandani Devi (7), the Hon'ble Supreme Court held that settlement among the family members does not amount to transfer for the reason that by settlement, each party take a share in the property by virtue of independent title which is admitted to that extent by the other parties. While deciding the said case, the Apex Court placed reliance upon various judgments of the Privy Council including Mst. Hiran Babi vs. Mst. Sohan Bibi (8); Rangaswami Gounden vs. Nachiappa Gounden (9); Sureshwar Misser vs. Maheshrani Misrain (10); and Man Singh vs. Nowlakhbati (11). In Kale & Ors vs. Deputy Director of Consolidation & Ors. (12), the Hon'ble Apex Court considered the issue of "settlement" elaborately, placed reliance upon a large number of its earlier judgments and held that settlement means a fair and equitable division or allotment of properties between various members of the family. In Sahu Madho Das vs. Mukand Ram (13), the Supreme Court held that a settlement is always "based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of others, as they had previously asserted it, to the portions allotted to them respectively." The Court further observed as under:- "That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary....... Under the arragement, one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute to all the properties resides in only one of their number and are content to take such properties as are assigned to their share..." ;