# Smt. Anju Rajpal & Ors v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 770
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Writ B No. 692 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anju-rajpal-ors-v-state-of-u-p-ors-49186
- **Pages:** 10

## Headnote

A. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Remand - DDC, is
the highest court in the hierarchy of
Consolidation Court and have powers to
appraise both the findings of fact and
law - DDC is the final Court of fact and
law in but in the present case the matter
has proceeded ignoring the provisions
contained in the Partnership Act i.e.
Sections 5, 6, 14, 37, 42 to 49 and the
parties have also not brought on record
the
requisite
evidence
which
could
support the respective contentions -
none
of
the
two
authorities
i.e.
Consolidation Officer and the Settlement
Officer of Consolidation had taken a look
at the problem with the correct lens of
the legal provisions, hence, in the
aforesaid circumstances, the remand
was the only option - order passed by
the Deputy Director of Consolidation
remanding
the
matter
for
decision
afresh does not suffer from any error
(Para 41, 46, 47, 48)

B.
Civil
Law
-
Partnership
Act
-
Dissolution Of A Firm - Section 39 -
Distinction, between distributions of
assets of a firm amongst its partners
upon dissolution and transferring certain
assets of the firm to a third party (nonpartner) for satisfying an obligation or
to settle/satisfy a share demand of a
third party is quite real and different -
Distribution of an asset of a firm
amongst the partners upon dissolution
in terms of the Partnership Act may be
nothing but re-adjustment for which
though
deed
is
drawn
but
its
registration
may
not
be
required,
however, but if the same is done qua a
third party who is not a partner who
merely has a claim against the firm then
the situation changes as his capacity
would be that of a creditor and what
benefit may be available to the partners
inter se is not available to such third
party (creditor) as that would constitute
a
transfer
attracting
all
its
legal
requirements. (Para 39)

Allowed. (E-5)

List of Cases cited:

## Text

770 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 770
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE
THE HON'BLE JASPREET SINGH, J.

Writ B No. 692 of 2022

Smt. Anju Rajpal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Chandra Bhushan Pandey, Asim Kumar
Singh

Counsel for the Respondents:
C.S.C., Pritish Kumar, Shantanu Gupta,
Vaibhav Gupta

A. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Remand - DDC, is
the highest court in the hierarchy of
Consolidation Court and have powers to
appraise both the findings of fact and
law - DDC is the final Court of fact and
law in but in the present case the matter
has proceeded ignoring the provisions
contained in the Partnership Act i.e.
Sections 5, 6, 14, 37, 42 to 49 and the
parties have also not brought on record
the
requisite
evidence
which
could
support the respective contentions -
none
of
the
two
authorities
i.e.
Consolidation Officer and the Settlement
Officer of Consolidation had taken a look
at the problem with the correct lens of
the legal provisions, hence, in the
aforesaid circumstances, the remand
was the only option - order passed by
the Deputy Director of Consolidation
remanding
the
matter
for
decision
afresh does not suffer from any error
(Para 41, 46, 47, 48)

B.
Civil
Law
-
Partnership
Act
-
Dissolution Of A Firm - Section 39 -
Distinction, between distributions of
assets of a firm amongst its partners
upon dissolution and transferring certain
assets of the firm to a third party (nonpartner) for satisfying an obligation or
to settle/satisfy a share demand of a
third party is quite real and different -
Distribution of an asset of a firm
amongst the partners upon dissolution
in terms of the Partnership Act may be
nothing but re-adjustment for which
though
deed
is
drawn
but
its
registration
may
not
be
required,
however, but if the same is done qua a
third party who is not a partner who
merely has a claim against the firm then
the situation changes as his capacity
would be that of a creditor and what
benefit may be available to the partners
inter se is not available to such third
party (creditor) as that would constitute
a
transfer
attracting
all
its
legal
requirements. (Para 39)

Allowed. (E-5)

List of Cases cited:

1. Kale Vs Deputy Director of Consolidation
(1976) (2) ALR 173

2. Gopi Nath Vs. Satish Chandra AIR 1964 Alld.
53

3.
Controller
of
Estate
Duty,
Gujarat,
Ahmedabad Vs. Mrudula (Smt.) Naresh Chandra
AIR 1986 SC 1821

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri C.B. Pandey, learned
counsel for the petitioner, learned Standing
Counsel for the State-respondents as well
as Sri Pritish Kumar, learned counsel for
the private respondent no. 3.

2. Since the parties have exchanged
the pleadings, accordingly, with the consent
of learned counsel for the parties, the
matter has been heard finally at the
admission stage itself.
1 All. Smt. Anju Rajpal & Ors. Vs. State of U.P. & Ors.
771

3. Under challenge is the order dated
20.09.2022 passed by the DDC, Sitapur by
means of which the revision preferred by
the private respondent no. 3 has been
allowed and after setting aside the order
passed by the Settlement Officer of
Consolidation Officer dated 16.12.2022 and
the order dated 23.01.2021 passed by the
Consolidation Officer, the matter has been
remanded for decision afresh. It is this
order of remand which is under challenge
in the instant petition.

4. Sri C.B. Pandey, learned counsel
for the petitioners assails the impugned
order of remand passed by the DDC,
Sitapur, primarily on two grounds:-

(i) That the matter was concluded
by findings of fact which were duly
recorded by the Consolidation Officer and
the Settlement Officer of Consolidation and
there was no material before the DDC to
have taken a contrary view and even
otherwise the DDC erred in setting aside
the orders and remanding the matter,
thereby unsettling a position which had
been settled after decades of litigation.

(ii) It is also urged that the DDC,
Sitapur committed an error in remanding
the matter especially when being the
highest
court
in
the
hierarchy
of
Consolidation Court and having powers to
appraise both the findings of fact and law, it
could have decided the matter itself rather
than remanding the matter and too on
account of insufficient reasons as a result,
the orders passed by the C.O. and the SOC
respectively have been set aside resulting in
sheer miscarriage of justice. The DDC
further failed to notice that the respondent
no. 3 admittedly could not establish its
nexus with the firm which was the recorded
owner of the property in dispute as well as
the fact that the petitioners being the
successor-in-interest of the legal heirs of
the original deceased partner and the
property having vested in them which has
been unsettled by the order of remand
which is bad in the eyes of law.

5. Elaborating his submissions, Sri
C.B. Pandey, has submitted that the dispute
in question relates to Khata No. 46, 124
and 125 comprising of several plots situate
in Village Jamaitpur, Pargana Khairabad,
Tehsil and District Sitapur which was
recorded in the name of Firm Ghannumal
Bhagwan Das, Sitapur.

6. It is the case of the petitioners that
an unregistered firm under the name and
style of Ghannumal Bhagwan Das was
constituted
on
15.01.1950.
Both
Ghannumal and Bhagwan Das belonged to
the same family and a family tree has also
been brought on record and indicated in
paragraph 14 of the writ petition to indicate
that Ghannumal and Bhagwan Das were
related to each other as uncle and nephew
respectively. (Bhagwan Das was the son of
Bandhanmal who was the real brother of
Ghannumal).

7. The said firm Ghannumal Bhagwan
Das, Sitapur had the following partners
namely Seth Ghannumal, Seth Bhagwan
Das, Sri Hasanand and Sri Warandmal. It is
also the case of the petitioners that
Ghannumal
and
Bhagwan Das
were
working partners while Sri Hasanand and
Warandmal were sleeping partners.

8. As per the deed dated 15.01.1950
placed on record as Annexure No. 4, it
would indicate that Ghannumal had a
12.5% share in the said partnership, Sri
Bhagwan Das and Hasanand had a share of
31.25% each and Sri Warandmal had a
share of 25%.
772 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It is also the case of the petitioners
that the aforesaid firm namely Ghannumal
Bhagwan Das, Sitapur was primarily
engaged in Railway contracts to be carried
out in different districts of Uttar Pradesh
and it also established a brick kiln in
Sitapur as part of its business. It has
specifically been pleaded that amongst
various properties purchased by the firm,
the said firm purchased agricultural land by
way of different sale deeds in village
Jamaitpur, Pargana Khairabad, Tehsil and
District Sitapur relating to Khata No. 125
over which the brick kiln was established
as indicated in paragraph 7 of the writ
petition whereas the other land which
comprise of Khata no. 46 was purchased
during the lifetime of Ghannumal by the
said firm. After purchase of the aforesaid
land by the firm, the mutation was also
carried out in the revenue records in favour
of Ghannumal Bhagwan Das, Sitapur.

10. Sri Ghannumal is said to have
executed a will on 21.10.1964 whereby he
had bequeathed his entire properties/assets
in favour of his sons, grand sons and his
wife as per details given in his will
(Annexure No. 8 with the writ petition). It
has further been pleaded on behalf of the
petitioner that upon the death of Sri
Ghannumal on 23.10.1964, the firm M/s
Ghannumal Bhagwan Das, Sitapur was reconstituted on 24.10.1964 to carry on the
business with the remaining three partners.

11. It is further urged that the share of
the Ghannumal in the partnership namely
Ghannumal
Bhagwan
Das,
Sitapur
remained intact and invested in the reconstituted firm itself. Subsequently, the reconstituted firm namely M/s Ghannumal
Bhagwan Das, Sitapur was duly registered
on 19.03.1965 with the remaining three
partners namely Bhagwan Das, Hasanand
and Warandmal to carry on the same
business as was being conducted prior to
the death of Sri Ghannumal.

12. It is also specifically pleaded on
behalf of the petitioners that the firm
namely M/s Ghannumal Bhagwan Das,
Sitapur which was initially constituted in
the year 1950, as mentioned above, was
dissolved in the year 1972 and an
intimation of the said dissolution was also
communicated to the Sales Tax Officer,
Sitapur on 01.11.1972.

13. It is also urged that since Sri
Ghannumal and Bhagwan Das belonged to
the same family being related as uncle and
nephew, hence, upon the dissolution of the
firm M/s Ghannumal Bhagwan Das,
Sitapur in the year 1972, the properties of
the firm situate in Village Jamaitpur, which
is the disputed land in question fell in the
share of Seth Ghannumal, accordingly,
upon dissolution the said properties were
inherited by the sons of Sri Ghannumal
namely Daya Singh, Hashmat Rai and Hari
Lal.

14. The three sons of Ghannumal
thereafter constituted a new firm on
01.11.1972 with the assets inherited by
them upon the dissolution of the erstwhile
firm namely Ghannumal & Sons. Even this
firm M/s Ghannumal & Sons was dissolved
w.e.f. 31.10.1975 and the assets of the
aforesaid firm Ghannumal & Sons were
partitioned between the three partners (the
three sons of Ghannumal) of the firm
Ghannumal & Sons.

15. The eldest son of Ghannumal
namely Daya Singh formed another firm
namely M/s Daya Singh Bedi to run the
brick kiln business situate on the land of
the village Jamaitpur. In terms of the will
1 All. Smt. Anju Rajpal & Ors. Vs. State of U.P. & Ors.
773
executed by Sri Ghannumal, the residential
house situate in Sitapur was inherited by
the grand son of Sri Ghannumal namely Sri
Dilip Kumar.

16. It is also the case of the petitioners
that the private respondent no. 3 was
merely
a
Manager/Munshi
who
was
appointed by the Firm to look after the
brick
kiln business.
Even
after
the
dissolution of the firm M/s Ghannumal &
Sons, the said business of brick kiln was
taken over by the firm M/s Daya Singh
Bedi and Sri Uttam Chand i.e. the
respondent no. 3 continued to act as the
Manager to look after the business of brick
kiln. Reliance has been placed upon various
documents and receipts/license to indicate
that the property in question continued to
be in possession of the family members of
Sri Ghannumal, namely Sri Dilip Kumar
(grandson of Ghannumal) son of Sri Daya
Singh.

17. It has also been pointed out that
Sri Uttam Chand, the respondent no. 3
instituted a suit staking claim on the
property by filing a suit under Section 229B of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act claiming rights only
in respect of Gata No. 334, 329 and 244
which were plots of Khata No. 44 only,
however, the said suit came to be dismissed
in default on 09.02.1983. Though, an
application
for
recall/restoration
was
moved which was allowed, thereafter the
consolidation operations started in the
village Jamaitpur, Pargana Khairabad,
District Sitapur and the proceedings abated
but nevertheless the fact remains that this
act of Sri Uttam Channd was nothing but
an
attempt
to
usurp
the
properties
belonging to the firm M/s Ghannumal
Bhagwan
Das,
Sitapur
which
after
dissolution fell in the share of the legal
heirs of Sri Ghannumal and in any case Sri
Uttam Chand had no right, title or interest
therein.

18. It is further urged that upon the
commencement
of
consolidation
operations, objections were filed by Sri
Uttam Chand and the issue was raised by
Sri Uttam Chand claiming himself to be a
partner of a firm namely M/s Ghannumal
Bhagwan Das Contractors, Gonda and M/s
Ghannumal Bhagwan Das, Lucknow and
claiming right to the property of Gata No.
329, 244, 344, 332 and 315. It is also urged
that the respondent no. 3 has been taking a
vacillating stand at various stages of the
litigation.

19. The Consolidation Officer had
upon the exchange of pleadings framed as
many
as
seven
issues
and
after
meticulously considering the evidence led
by the respective parties, recorded findings
that upon the dissolution of the firm namely
Ghannumal Bhagwan Das, Sitapur, a
family settlement took place in the year
1975 in terms whereof the properties in
question fell in the share of the petitioners
and Sri Uttam Chand had no stake. It was
also held that since after the death of
Ghannumal, the firm being a family firm,
hence, in terms of the family settlement, the
properties fell in the share of the respective
parties who were the heirs of Sri
Ghannumal and moreover they have been
in possession. As far as the private
respondent no. 3 is concerned, he could not
establish his rights over the property in
question or to indicate how he had any
connection with the erstwhile firm namely
M/s Ghannumal Bhagwan Das, Sitapur
which was constituted in the year 1950 and
had purchased the property in question and
was dissolved in the year 1972, hence, the
objections of Sri Uttam Chand was rejected
774 INDIAN LAW REPORTS ALLAHABAD SERIES
and the property rights were decided in
favour of the present petitioners by means
of
the
judgment
passed
by
the
Consolidation Officer dated 23.01.2021.

20. Upon the appeal preferred by Sri
Uttam Chand, the Settlement Officer of
Consolidation,
Sitapur
by
means
of
judgment dated 16.12.2021 dismissed the
appeal of the private respondent no. 3 and
affirmed the findings of the Consolidation
Officer.

21. Against the aforesaid two
judgments dated 23.01.2021 passed by the
Consolidation Officer as well as the order
dated 16.12.2021 passed by the Settlement
Officer of Consolidation, the private
respondent no. 3 preferred a revision before
the DDC, Sitapur which by means of the
impugned order dated 20.9.2022 has been
allowed and the matter has been remanded
and the same is not in sound exercise of
jurisdiction for the grounds already noticed
in para 4 of this judgment.

22. The learned counsel for the
petitioner has relied upon the decision of
the Apex Court in the case of Kale Vs.
Deputy Director of Consolidation reported
in (1976) (2) ALR 173 and Gopi Nath Vs.
Satish Chandra reported in AIR 1964 Alld.
53

23. Sri Pritish Kumar, learned counsel
for the private respondent no. 3 while
making his submissions has submitted that
the
entire
premise
upon
which
the
Consolidation Officer as well as the
Settlement Officer of Consolidation has
proceeded is quite erroneous. It is urged
that the Consolidation Officer and the
Settlement Officer of Consolidation lost
sight of the fact that once it is the admitted
case of the parties that the property in
question belonged to the firm namely M/s
Ghannumal Bhagwan Das, Sitapur which
was dissolved in the year 1972 and the
subsequent developments which took place
have not been taken note of or appreciated
in the correct legal perspective, ignoring
the provisions of the Partnership Act which
was essentially applicable and this has
resulted in an incongruous result.

24. Elaborating his submissions, it is
urged by learned counsel for the respondent
no. 3 that there is a distinction between the
private assets of an individual and assets of
a firm. Upon the dissolution of a firm, the
rights of the deceased partner is confined
only to the value of his share in the firm
and cannot be ascribed to any particular
asset of the firm and is subject to the
profit/loss sharing ratio.

25. It is also urged that Sections 14,
42(c), 46 and 37 of the Partnership Act,
1932 are vital to understand and to be
followed while dealing with the assets of a
firm and its distribution amongst its
partners which has not been noticed by the
two authorities i.e. the Consolidation
Officer and the Settlement Officer of
Consolidation while the Deputy Director of
Consolidation has clearly noticed the
distinction between the private assets of an
individual and rights and assets of a partner
in a firm and finding that this aspect has not
been taken note of by the two authorities
has rightly remanded the matter as in
absence of proper appreciations of the
evidence
and
legal
provisions,
the
conclusions as arrived at by the two
Consolidation Authorities are erroneous,
hence, the DDC was absolutely justified in
remanding the matter.

26. The learned counsel for the
respondent no. 3 has also submitted that on
1 All. Smt. Anju Rajpal & Ors. Vs. State of U.P. & Ors.
775
the perusal of the given facts and the
admitted case of the petitioners, it is urged
that it is incorrect to state that the firm M/s
Ghannumal Bhagwan Das, Sitapur which
was originally constituted in the year 1950
was a family firm. From the perusal of the
partnership deed as filed by the petitioners,
it would indicate that Sri Ghannumal had
only
12.5%
share
rather
the
major
shareholders were Sri Bhagwan Das, Sri
Hasanand and Sri Warandmal. Even from
the perusal of the pedigree as mentioned by
the petitioners in paragraph 14 of the writ
petition, it would indicate that Warandmal
and Hasanand were not part of the family
of
Ghannumal.
Sri
Warandmal
and
Hasanand were outsiders to the family and
they together held 56.25% i.e. the majority
share in the said firm.

27. It is further elaborated that upon
the dissolution of the firm M/s Ghannumal
Bhagwan Das, Sitapur in the year 1972.
Even if the share of Ghannumal remained
intact and invested in the firm then at best
the share of Ghannumal was confined to
the extent and value of the invested amount
in the firm which was re-constituted in the
year 1964 till such time it was dissolved in
the year 1972. However, even the existing
partners, at the time when the firm was
dissolved in the year 1972, could not claim
any specific share on any particular asset.
Admittedly, on the date of death Sri
Ghannumal, his legal heirs were never
inducted in the re-constituted partnership
from 1964 to 1972 when it was dissolved
and if at all, there was any claim, the legal
heirs could have filed the suit against the
value of the share of Ghannumal and could
not claim a right over any particular asset
of the firm claiming it to be their own.

28. It is further urged that in October,
1964 after the death of Sri Ghannumal,
another firm M/s Ghannumal Bhagwan Das
Contractors, Gonda was constituted with
Sri Bhagwan Das, Panjumal, Uttam Chand
(respondent no. 3) and Sri Parasram as the
partners of the said firm. The attention of
the Court has been drawn to the said deed
which has been brought on record as
Annexure No. CA-1 to the counter affidavit
filed by the respondent no. 3 to state that
upon the constitution of the said firm, it
was clearly stated that all the railway
contracts,
assets
and
liabilities
and
outstanding works of the firm namley M/s
Ghannumal Bhagwan Das, Sitapur shall be
taken over by M/s Ghannumal Bhagwan
Das, Gonda.

29. It is further stated that again a
partnership deed was executed between
Bhagwan
Das.
Sri
Uttam
Chand
(respondent no. 3), Sri Hashmat Rai and Sri
Ghanshyam Das. This firm was known as
"Ghannumal Bhagwan Das, Lucknow and
the said deed also clearly indicated that the
firm M/s Ghannumal Bhagwan Das,
Sitapur and M/s Ghannumal Bhagwan Das,
Gonda are being taken over by this new
firm M/s Ghannumal Bhagwan Das,
Lucknow. This firm also came into being in
the year 1966 wherein Sri Uttam Chand,
i.e. the respondent no. 3 was a partner
alongwith Sri Bhagwan Das and Sri
Hashmat Rai. In the firm M/s Ghannumal
Bhagwan Das, Lucknow which came into
being in the year 1966, Hashmat Rai was
none other than the son of Sri Ghannumal
who was a partner in his HUF capacity.

30. The contention is that a deed of
partnership is nothing but a contract
entered between the parties. Sri Bhagwan
Das was a common partner in the firm
which was constituted in the year 1950 also
in the firm M/s Ghannumal Bhagwan Das,
Gonda which came into existence in
776 INDIAN LAW REPORTS ALLAHABAD SERIES
October,
1964
after
the
death
of
Ghannumal so also in the firm M/s
Ghannumal Bhagwan Das, Lucknow which
came into effect in November, 1966 which
had taken over the business of the firm M/s
Ghannumal Bhagwan Das, Gonda and M/s
Ghannumal Bhagwan Das, Sitapur.

31. It is further submitted that upon a
dissolution of a firm, a deed of dissolution
is to be prepared in terms whereof the
rights and liabilities of the partners is
settled after paying of all the debts and
outstanding of the firm. It is only thereafter
that the surplus is divided amongst the
partners and only partners themselves. In
the instant case, the heirs of Ghannumal
were never inducted in the partnership after
the death of Sri Ghannumal in the year
1964,
consequently,
the
theory
as
propounded by the petitioners that after the
firm M/s Ghannumal Bhagwan Das,
Sitapur which was re-constituted in the
year 1964 with only three partners and
which was dissolved in the year 1972 and
upon the said dissolution, the heirs of
Ghannumal got the property in question as
their share equivalent to that sum invested
upon the death of Ghannumal does not
have any legal binding stand.

32. At best the petitioner could only
get a share to the extent of the value of the
share in the firm and not any particular
asset representing the said share. Even
otherwise, if at all, any particular asset was
ascribed to the heirs of Sri Ghannumal as
representing their share then the same
could only be done by an appropriate deed
duly stamped and registered as the heirs of
the Sri Ghannumal admittedly were not
partners after the death of Sri Ghannumal
and they only had a right claiming the
money value of the share of Ghannumal
invested in the firm. In absence of any
proper deed of conveyance or transfer, the
theory that the assets of the firm came in
the hands of heirs of Ghannumal on the
basis of a family settlement is contrary to
the legal provisions and no such family
settlement could have been arrived at,
especially, when it is clear that the firm M/s
Ghannumal Bhagwan Das, Sitapur even as
constituted in the year 1950 was not a
family firm where Ghannumal had only a
minor share of 12.5% and the larger share
of 56.25 % were held by the outsiders
namely Sri Hasanand and Sri Warandmal.

33. The further submission of learned
counsel for the respondent no. 3 is that in
absence of any proper deed, the heirs of
Ghannumal could not claim a right over the
particular asset of the firm and moreover
from the will as has been placed on record
by the petitioners, it would indicate that Sri
Ghannumal himself admitted that he had
not put in any particular immovable asset
rather his money was invested in the firm.
Any investment in the firm representing the
share of Sri Ghannumal is to be treated in
terms of money value and not in terms of
any particular and specific asset/immovable
property.

34. In the aforesaid circumstances in
absence of any proper deed duly stamped and
registered no rights could be created in favour
of any third party who was not a partner and
what is going to be its effect in law after
applying the principles as well as the
provisions contained in the Partnership Act
the matter required re-consideration and for
the said reasons, the matter has been
remanded and there is no error of jurisdiction
committed by the DDC, accordingly, the writ
petition deserves to be dismissed.

35. The learned counsel for the
private respondents has also filed his brief
1 All. Smt. Anju Rajpal & Ors. Vs. State of U.P. & Ors.
777
submissions
and
in
support
of
his
contentions has relied upon a decision of
the Apex Court in the case of Controller of
Estate Duty, Gujarat, Ahmedabad Vs.
Mrudula (Smt.) Naresh Chandra reported
in AIR 1986 SC 1821.

36.

The
Court
has
carefully
considered the rival submissions and
perused the material on record including
the written submissions and the case laws
cited by the respective parties.

37. At the outset, it may be noticed
that partnership is nothing but a form of the
contract. A Partnership Firm may be
constituted by members of a family or even
by such persons who may not be related but
the fact remains that in either situation the
rights and obligations of the respective
partners is confined to the rights and
obligations as provided in the partnership
deed subject to the provisions of the Indian
Partnership Act, 1932.

38. Upon perusal of the judgments
passed by the Consolidation Officer and the
Settlement Officer of Consolidation, it
would
indicate
that
both
the
said
Authorities have based their conclusions on
the premise that the firm M/s Ghannumal
Bhagwan Das, Sitapur as constituted in the
year 1950 was a family firm and upon the
dissolution in the year 1972 in terms of a
family settlement, the assets of the said
firm came to be distributed amongst the
legal heirs of Sri Ghannumal and the
remaining partners, though no such deed
was brought on record.

39.

The
distinction,
between
distributions of assets of a firm amongst its
partners upon dissolution and transferring
certain assets of the firm to a third party
(non-partner) for satisfying an obligation or
to to settle/satisfy a share demand of a third
party is quite real and different. The
distribution of an asset of a firm amongst
the partners upon dissolution in terms of
the Partnership Act may be nothing but readjustment for which though deed is drawn
but its registration may not be required,
however, but if the same is done qua a third
party who is not a partner who merely has a
claim against the firm then the situation
changes as his capacity would be that of a
creditor and what benefit may be available
to the partners inter se is not available to
such third party (creditor) as that would
constitute a transfer attracting all its legal
requirements. Apparently, even from the
material brought on record before this
Court, neither any dissolution deed has
been brought on record to indicate that how
the assets of the firm M/s Ghannumal
Bhagwan Das, Sitapur were distributed
upon dissolution. In absence of such
evidence no clear finding could be
recorded.

40. The effect of the fact that
Hashmat Rai, one of the sons of the
Ghannumal who was a partner in the firm
M/s Ghannumal Bhagwan Das, Lucknow
which came into being in the year 1966 and
that too in his capacity as an HUF wherein
Sri Bhagwan Das was also a partner with
Uttam Chand, the respondent no. 3 herein
and in the said deed there is a clear recital
that all the assets and liabilities of the firm
M/s Ghannumal Bhagwan Das, Lucknow
and
M/s
Ghannumal
Bhagwan
Das
Contractors, Gonda are being taken over by
the said firm. These two deeds of
partnership, its legal effect has also not
been
considered.
Whether
upon
the
constitution of these two firms i.e. M/s
Ghannumal Bhagwan Das, Lucknow and
M/s Ghannumal Bhagwan Das Contractors,
Gonda wherein the partners were in their
778 INDIAN LAW REPORTS ALLAHABAD SERIES
distinct capacities, coupled with the fact
even in the will executed by Ghannumal,
the share of Ghannumal as invested in the
firm have not been specifically bequeathed
to
the
present
petitioners
or
their
predecessors-in-interest
and
there
is
nothing on record before this Court to show
that how the present petitioners alone are
claiming right even though Sri Ghannumal
expired in the 1974 and in the year 1966
one of his sons namely Hashmat Rai was
included in the firm M/s Ghannumal
Bhagwan Das, Lucknow as an HUF and
upon the dissolution of the firm in the year
1972 how the assets of the firm M/s
Ghannumal Bhagwan Das, Lucknow could
have been distributed amongst the heirs of
Ghannumal contrary to the manner in
which the ''Will has been devised by the
Ghannumal himself are all questions which
require consideration. This aspect also was
not taken note of by the C.O. and the SOC.

41. In order to arrive at a correct
conclusion, the provisions contained in the
Partnership Act i.e. Sections 5, 6, 14, 37, 42
to 49 have to be taken note in context with
the evidence relating to the different
partnership firms constituted from time to
time and their respective dissolution. Since
none
of
the
two
authorities
i.e.
Consolidation Officer and the Settlement
Officer of Consolidation had taken a look
at the problem with the correct lens of the
legal provisions and this aspect has
attracted the attention of the DDC who
after noticing the same found that the
matter required a re-look and for the said
purpose it has remanded the matter.

42. In so far as the decision cited by
the learned counsel for the petitioner in the
case of Kale Vs. DDC (Supra) is
concerned, the proposition is very well
settled to be disputed, however, what needs
to be noticed is whether the principles as
laid down by the Apex Court in the case of
Kale (supra) has got any applicability in the
instant case. Needless to say that a family
settlement can be arrived at between the
family members who have any pre-existing
rights. Whether the said principles can be
extended to a partnership firm which
comprises
of
family
and
non-family
members as in the instant case and the nonfamily members are having a larger share is
to be considered.

43. Even in the case of Chandra
Kumari Vs. DDC (supra), the applicability
of the proposition in the instant case is to
be considered.

44. Similarly, the decision cited by the
learned counsel for the respondent in the
case of Mridula Naresh Chandra (supra)
whether it would apply in the given facts
will naturally have to be tested in the given
fact situation.

45. As already noticed above that this
aspect relating to the rights of the parties
which flow from a partnership firm, rights
of a party which they inherit as members of
a family. It also has to be seen that
admittedly where Sri Ghannumal had
executed a will and had devised his
property in terms of the said will, then
whether, while the said will subsists a
family settlement can be taken note of and
what would be its validity also is a point to
be considered. These intricate questions are
interweaved with the facts which have not
been considered either by the Consolidation
Officer or by the Settlement Officer of
Consolidation.

46. It may be true that the DDC is the
final Court of fact and law in but in the
present
case
where
the
matter
has
1 All. Smt. Saidan Vs. Board of Revenue, Allahabad & Ors.
779
proceeded upon a tangent and ignoring the
principles as attracted to the dispute in
question de-hors the provisions of the
Partnership Act and the parties have also
not brought on record the requisite
evidence
which
could
support
the
respective contentions, hence, this Court is
of the clear view that it cannot be said that
the order of remand is bad in the given
circumstance.

47. In the instant case, the matter does
require a re-look and in the aforesaid
circumstances this Court is satisfied that the
order dated 20.09.2022 passed by the Deputy
Director of Consolidation remanding the
matter for decision afresh does not suffer
from any error.

48. The fact that the parties have been
litigating since long may not be the only
reason for this Court to intervene as the
questions which are involved have not been
looked into by the Courts below, hence, in the
aforesaid circumstances, the remand was the
only option and thus taking care of the
apprehension that the parties have been
litigating since several years, this aspect can
be taken care by directing the parties to
appear before the Consolidation Officer
concerned on 05.01.2023 and the parties shall
be entitled to file any additional evidence
they wish to file in support of their
contentions in light of the issues raised before
the Court within a period of three weeks of
putting their appearance and thereafter the
matter be decided by fixing dates on weekly
basis within a further period of four weeks by
affording a reasonable opportunity of hearing
to the parties but without granting any
unnecessary adjournments on any ground
except in exceptional circumstances.

49. It is made clear that any
observations by this Court may not be
treated as an expression of opinion on
merits but was for the limited purpose to
assess the respective contentions of the
parties in juxtaposition to test the order of
remand passed by the Deputy Director of
Conosolidation,
hence,
the
Court
of
Consolidation Officer shall be free to
decide the controversy on its own merits, in
light of the issues and observations noticed
in this judgment and on the basis of the
evidence on record strictly, in accordance
with law.

50.

Keeping
the
order
dated
20.09.2022 intact subject to the directions
and observations as noted above, the
petition is dismissed. In the facts and
circumstances, there shall be no order as to
costs.
----------
(2023) 1 ILRA 779
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE
THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 3586 of 2018

Smt. Saidan ...Petitioner
Versus
Board of Revenue, Allahabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Tiwari

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Pandey

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 157-A - Restrictions on transfer of
land by members of Scheduled Castes -
Auction sale - bar of Section 157-A of the
U.P. Z.A. & L.R. Act will not apply in
respect to the auction sale proceeding -