TMI Blog2011 (9) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... d each of the brothers got possession of their respective portions of the land. In 1988, Prem Prakash Chaudhary and Man Mohan Singh filed a civil suit against Rajinder Mohan Rana and Surinder Mohan Rana seeking restrain against them from selling, dispossessing or otherwise interfering in the land which had fallen in the share of the Respondent Nos. 1 2 herein in pursuance to the family settlement dated 26th December, 1984. During the pendency of the said suit, the parties arrived at an amicable settlement before the appointed Panchas and an award dated 14th May, 1989 was signed by the four brothers. Thereafter, an application under Order 23 Rule 3 of the Code of Civil Procedure was filed before the Civil Court, in which they admitted that the agricultural land was divided/partitioned amongst them. The Civil Court on 3rd August, 1989 recorded statements of the parties in support of the compromise and dismissed the suit as compromised. 3. The Respondent Nos. 1 and 2 approached the Tehsildar, Najafgarh for mutation of their respective portions of land. Vide order dated 9th June, 1995, mutation was allowed in terms of the compromise application. Tehsildar has observed that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Holding of a Bhumidhar partible.-(1) A Bhumidhar may sue for partition of his holding. (2) To every such suit the Gaon Sabha concerned shall be made party. 7. It is not possible to agree with the contention of the Appellants that Section 55 of the Reforms Act prescribes the only mode and manner of partition of land between joint bhumidhars. Section 55 of the Reforms Act prescribes one of the ways in which the joint bhumidhars can partition the land i.e., by going for legal proceedings for partition of land. Section 55 does not bar or prohibit joint bhumidhars from entering into a settlement or compromise between themselves for partition of the land. Such an embargo is not stipulated expressly and should not be impliedly read into Section 55. Express stipulation is certainly missing. Section 55 uses the word 'may sue' which indicates a discretionary element that a joint bhumidhar may approach the Court of Revenue Assistant for partition. Normally, the word 'may' means discretion and is not mandatory. In the present case we do not see any reason why the word 'may' in Section 55, should be read as 'must' or 'shall'. Courts do not interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of it. This as we understand it, was the principle laid down in the case cited before us: Frederic Guilder Julius v. Right Rev. Lord Bishop of Oxford: Re v. Thomas Thellusson Carter.(5 AC 214). 10. The principle laid down above has been followed consistently by this Court whenever it has been contended that the word may carries with it the obligation to exercise a power in a particular manner or direction. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. This is the principle we deduce from the cases of this Court cited before us: Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad (AIR 1963 SC 120), State of Uttar Pradesh v. Jogendra Singh (AIR 1963 SC 1618), Sardar Govindrao v. State of M.P. (AIR 1965 SC 1222), Shri A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Smt Ram Kali, Bashira v. State of U.P. (AIR 1968 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice. 11. There are good reasons to hold why impliedly such prohibition should not be read whilst interpreting Section 55 of the Reforms Act. Resort to Court process, to resolve disputes, is normally treated as last resort and not the first or best option. Joint bhumidhari can be and is normally between relatives and sometimes between close friends. It is difficult to visualize joint bhumidhari in other cases, and such cases will be rare. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 to allay 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 claim or some other ground, as say affection, may suffice as observed by this Court in Ram Char an Das v. Girjanandini Devi (AIR 1966 SC 323). 44. In Lala Khunni Lal v. Kunwar Gobind Krishna Narain (ILR (1911) 33 All 356 (PC)) the Privy Council examined that it is the duty of the courts to uphold and give full effect to a family arrangement. 45. In Sahu Madho Das v. Pandit Mukand Ram (AIR 1955 SC 481) (Vivian Bose, Jagannadhadas and B.P. Sinha, JJ.) placing reliance on Clifton v. Cockburn ((1829) All ER Rep 181) and Williams v. Williams((1866) LR 2 Ch 294) 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: (SCR p. 43) [S]o strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents entered into between the parties with a view to resolving disputes for all. This Court observed that: (SCC pp. 125-26, para 9) By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once 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 results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. ... The courts have, therefore, leaned in favour of upholding a fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at where as a result of transfer, the transferor is left with less than eight standard acres of land, certain consequences will flow. The aforesaid provisions are to prevent fragmentation of holdings into uneconomical sizes. Learned single Judge in this context has rightly observed as under: - 19. Section 33 deals with situation where as a result of transfer, the transferor shall be left with less than 8 standard acres of land. However, in partition there is No. transfer or transferor or transferee. Each of the co-owners is the owner of each and every parcel of the property and it cannot be said that any part of the property is transferred by one co-owner to the other. If any precedent is needed for the said proposition, reference may be made to Ram Charan Das v. Girja Nandini Devi AIR 1966 SC 323. I therefore do not see as to how Section 33 would apply. The purport of Section 33 is to prevent fragmentation of holdings to uneconomical sizes. There is nothing preventing continuance of holdings less than minimum prescribed or transfer where holding is in any case less than that prescribed. Practical experience shows that transfers resulting in transferor being left with less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the land. A Bhumidar is obliged to use the land for agricultural purposes. A Bhumidar is only a tenure holder having lost the right of ownership on agricultural land after the commencement of the Act. There is, however, a great security of the tenure under the Act. Bhumidari rights are, therefore, special rights created on the abolition of the ownership of the agricultural land and are controlled and regulated by the provisions of the Act. The language of Section 5 of the Act shows that a Bhumidar has all the rights and is subject to all the liabilities conferred or imposed upon a Bhumidar by or under the Act. The rights to the tenure holder are granted under the provisions of the Act. The restrictions imposed on the rights of a Bhumidar are also by or under the Act. There is No. warrant to travel outside the Act and the Rules for further restrictions in the right or manner of transfer of the Bhumidari rights. Section 34 of the Act, permits simple mortgage of land by a Bhumidar. This right is granted to tenure holder under the Act. Reading any further restriction by involving the customary law would come in conflict with the right granted under the Act. Any such impediment wo ..... 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