An unregistered family settlement is invalid and cannot be used to prove any transaction affecting the properties.

JUDGMENT :

D.M. Patnaik, J. - The petitioners assail the order (Annexure-3) of the Commissioner of Consolidations (opp. party No. 3) under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (for short, 'the Act') directing to record the lands in the proportion of half and half between the parties instead of 2/3rd and 1/3rd as claimed by them. The points involved and the parties to the writ petitions being the same, this judgment would dispose of all the three petitions.

2. The dispute relates lo the Land Register Khata Nos. 362 and 49 being the Stithiban recorded lands and Khata No. 51 the lands of an intermediary interest in Thana No. 49 of Bhubaneswar Tahasil. The details of the lands with particulars are found in the orders of the consolidation authorities in Annexures-1 and 2.

The case of the parties is that the petitioners represent the branch of Nabaghan, their father and opp. parties 1 and 2 represent the branch of Biswambar, both the branches being the successors of the common ancestor Chintamani. The petitioners claim higher share in the property on two grounds. Firstly that, the lands covered under Land Register Khata No. 51 was an intermediary interest which vested in the State and thereafter settled in the name of Nabaghan, father of the petitioners in Misc. Case No. 256 of 1959-60 for which the petitioners alone are entitled to be recorded since that being the self-acquired property of their father; and secondly, the claim for such recording is on the basis that both the parties mutually agreed under a Panchyat Faisalanama dated 30-1-1973 that the petitioners would be entitled to 2/3rd and the opposite parties would be entitled to 1/3rd share in the properties in question. Though the Consolidation Officer and the Deputy Director of Consolidations (opp. parties 5 and 4 respectively) held that the petitioners were entitled to be recorded on the basis of such Panchayat Faisalanama, the Commissioner of Consolidations reversed the decision by stating that under the law the parties are entitled to be recorded half and half in respect of the properties in question. This decision of the Consolidation Commissioner is challenged before this Court.

3. Mr. Mukherji, learned counsel for the petitioner strenuously urged that the property covered under Land Register Khata No. 51. i.e. the intermediary interest, should be held as the self-acquired of Nabaghana because the same having been settled with him under the provisions of the Orissa Estates Abolition Act, the opp. parties 1 and 2 cannot claim any interest in that property.

I am unable to accept this contention because there is no material before this Court that the parties were separated when this land was settled in the name of Nabaghana. Therefore, the presumption is that as on the date of vesting the parties were the members of joint family. Any settlement of property in favour of a member of that family except otherwise proved, would enure to the benefit of all the co-sharers. That apart, since the property also formed the subject-matter of the Panchayat Faisalanama dated 30-1-1970 on which the petitioners rely, it is rather admitted case of the petitioners that the property has assumed the character of joint family property and therefore the petitioners claiming exclusive ownership over the property does not arise.

The second contention of Mr. Mukherji is that the family settlement (Annexure-6 in OJC No. 4421/94) is a document which binds the of opposite parties wherein they relinquished 1/3rd interest in the property in question and agreed for reasons recorded therein that the recording should be in the proportionate of 2/3rd and 1/3rd.

Mr. K.B. Kar, learned counsel for opp. parties 1 and 2, seriously controverted the submission of Mr. Mukherji and submitted that the document cannot form the basis of any such recording in favour of the petitioners firstly because it is an unregistered document and secondly even assuming for the sake of argument