Savitri Devi Drolia v. State of Bihar — 1977 DIGILAW 82 (PAT)

judgment of the Court In this writ application the petitioners pray for quashing the orders contained in Annexure-1 and 3 being the orders of the Land Reforms Deputy Collector and the Additional Collector respectively in a proceeding under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1971 (hereinafter referred to as the "Ceiling Act"). 2. The lands, which are the subject-matter of the proceeding, were at one point of time properties of a Hindu coparcenery consisting of Gopi Ram Marwari and Anil Kumar Tekriwal. A proceeding under the then provisions of the Act, was started against Gopi Ram Marwari, being Land Ceiling Case No. 49 of 1965-66. 44.50 acres of land was declared surplus in that proceeding. An appeal was preferred by the aforesaid Gopi Ram being land Ceiling Appeal No.11 of 1972-73. Before the hearing of the appeal there was amendment in Bihar Act, 12 of 1962 and the ceiling area was reduced. The Additional Collector, therefore, remanded the case to the Deputy Collector Land Reforms to dispose of the proceeding afresh under the provisions of the amended Act, the amendments having been brought about by Bihar Acts 1 and 9 of 1973. Thus the surplus land was directed to be determined afresh under the provisions of the amended Ceiling Act. This would, it may be stated at this stage, amount to the start of a fresh proceeding under the amended provisions of the Ceiling Act. Naturally, therefore, a notice was issued in the name of Gopi Ram for filing return. Gopi Ram had in the mean time died. His date of death being 22.2.1973, the peon reported about the death of Gopi Ram. Thereafter the entire proceedings were commenced against his son Anil Kumar Tekriwal. A return was filed by the said Anil Kumar and a draft statement under section 10 was issued. He filed objection under section 10 (3) of the Ceiling Act. It appears that in the objection, which was filed, it was stated that the petitioners who are daughters of Gopi Ram, were also heirs of the deceased Gopi Ram and as such had interest in the property which were subject-matter of the proceeding. It was also stated that Gopi Ram had during his life-time transferred 15 bighas 11 Kathas 4½ dhurs of lands to petitioners 1 to 3. It was also stated that Gopi Ram had during his life-time transferred 15 bighas 11 Kathas 4½ dhurs of lands to petitioners 1 to 3. The Deputy Collector Land Reforms allowing two units: one for Anil Kumar and one for Gopi Ram, and accepting the transfers aforesaid declared 25.18 acres of land as surplus. The case of the petitioners is that they did not have any notice of the aforesaid proceeding and that having come to know of the decision aforesaid they preferred an appeal before the Additional Collector. In the memorandum of appeal they claimed to be land-holders in respect of the lands which were subject-matter of the proceeding and claimed that each of the petitioners were entitled to one unit each. It may be stated that another appeal being land Ceiling Appeal No. 81 of 1976-77 was preferred by Indrani Devi and others which too was heard along with the appeal of the petitioners. The Additional Collector in the impugned order (Annexure-3) negatived the claim of the petitioners that they were entitled to one unit each and further held that the transfer in favour of the petitioners had to be ignored and the lands aforesaid were also liable to be declared as surplus under the provisions of the Act. The latter finding was arrived at, although there was no appeal or cross-objection on behalf of the State. The view of the Additional Collector was that the petitioners were not land-holders on 9.9.1970, that being the appointed day for the purposes of determination of the ceiling area. The transfer in favour of petitioner was also ignored being against the provisions of the Santhal Parganas (Supplementary provision) Tenancy Act, 1949. 3. It would thus appear that the ceiling has been fixed in respect of a person (Gopi Ram) who was dead before the issue of draft statement and surplus land has been determined in relation to a person who was dead, on the basis that 9.9.1970 is the appointed day. It is to be examined whether this is a correct approach in law and sanctioned by the provisions of the Act. 4. Section 4 of the Ceiling Act, states that on the appointed day the following shall be the ceiling area of land for one family consisting of not more than five members for the purposes of this Act. It is to be examined whether this is a correct approach in law and sanctioned by the provisions of the Act. 4. Section 4 of the Ceiling Act, states that on the appointed day the following shall be the ceiling area of land for one family consisting of not more than five members for the purposes of this Act. "Land holder" has been defined to mean a family as defined in section 2 (ee) holding land as raiyat or under raiyat. Family has been defined as follows: "Family means and includes a person his or her spouse and minor children". Section-5 of the Ceiling Act, says that it shall not be lawful for any family to hold, except as other wise provided under this Act, any surplus land acquired from such family by the State Government under Chapter IV of the Act. Sections 6 and 8 of the Act, requires a landholder to submit return. When a return is required to be filed it is plain that it is a land holder who is living and in existence who can file the return. Had the intention of the law been to treat the land in excess of ceiling area as on 9.9.1970 as surplus, irrespective of the existence or non-existence of such a person after that day, suitable provisions would have been made requiring the heirs or legatee to file return in respect of the property held by the deceased land-holder who was alive on 9.9.1970. In the absence of any such provision it appears that surplus land was intended to be determined and declared on the basis that the land holder was alive on the appointed day and continued to live on the date of declaration i.e. final publication of the draft statement. A perusal of section 10 also leads to the same conclusion, Sub-Section (2) of section 10 requires the draft statement to be served on a land holder or land-holders. This, again, obviously refers to a land-holder who is living and in existence. This view is further strengthened if a reference is made to Section 5 (ii) of the Act, which is restraint on transfer, but has no reference whatsoever to any devolution of property on the death of a person either by inheritance or will. This, again, obviously refers to a land-holder who is living and in existence. This view is further strengthened if a reference is made to Section 5 (ii) of the Act, which is restraint on transfer, but has no reference whatsoever to any devolution of property on the death of a person either by inheritance or will. All these lead to the conclusion that the Act, does not contemplate the determination of the ceiling area of a dead person on the appointed day. Thus when section 5 says that a family is not permitted to hold land in excess of ceiling area except as provided under the Act, it refers to a family which is in existence. It is not in respect of a dead person that the Act, envisages the determination of the ceiling area, Of course, when the determination takes place whether a family has land in excess of ceiling area, it is with reference to the appointed day. In case there is accretion to the land of a landholder after 9.9.1970 that too is to be taken into consideration in view of the provisions of section 18 of the Ceiling Act. The view that we have expressed is fully supported by a decision of the Bombay High Court in Dadarao and another v. State of Maharastra and others which was dealing with similar provisions in Maharastra Agricultural Lands (Ceiling of Holdings Act) 1961. 5. It may sometimes happen that a landholder dies after the service of draft statement on him and before orders for final publication of the same under section 11 (1) of the Ceiling Act, is passed. What would be the position in such a case? It appears to us that even in such a case the proceeding cannot be continued against a dead person. There is no provision in the Act, for the substitution of legal heirs or representatives. In the absence of some such provision it appears that the proceeding abates on the death of the person against whom it was started. It cannot be continued against a dead person. On the death of the deceased land-holder his interest devolves on others. If further action is contemplated a fresh proceeding has to be started against living land-holders, of course clubbing together the other lands of such persons along with the land which may have devolved on them by inheritance, while, or otherwise. It cannot be continued against a dead person. On the death of the deceased land-holder his interest devolves on others. If further action is contemplated a fresh proceeding has to be started against living land-holders, of course clubbing together the other lands of such persons along with the land which may have devolved on them by inheritance, while, or otherwise. This view also, it may be stated, is in conformity with the view taken in Dadarao's case (Supra) where it has been held that land-holder must be in existence on the date when the land is declared to be surplus under the provisions of the corresponding Maharastra Act. The position may, however, be different if a land-holder dies after final publication of the draft statement under section 11 of the Ceiling Act. But this is a matter about which we need not express any opinion in this writ application. 6. We now deal with the observation of the learned Additional Collector in relation to the validity of the alleged transfer in favour of the petitioners. It has been observed that the transfers are in contravention of the provisions of the Santhal Parganas Tenancy (Supplementary) Act, 1949. Section 20 of the said Act, prohibits transfer by sale, gift etc. unless the right to transfer has been recorded in the record of right and then only to the extent to which such right is so recorded. Without expressing any opinion about constitutional validity of such a provision it may be pointed out that if transfers are permitted or recognised under any specific provision of the Ceiling Act, the same shall not become invalid in view of the provisions of section 20 of the Santhal Parganas Tenancy Act. The reason is that section 3 of the Act, is an overriding provision and is as follows :- "The previsions of this Act, shall have effect, notwithstanding anything to the contrary contained in any other Law, custom, usage or agreement, for the time being in force or in any decree or order of any Court." The effect of this provision, therefore, is that if there is an express provision in the Ceiling Act, permitting transfer the same shall prevail over the provisions of any other law. A transfer made in confirmity with the provisions of the Ceiling Act, will have to be recognised as valid and legal transfer. A transfer made in confirmity with the provisions of the Ceiling Act, will have to be recognised as valid and legal transfer. In the instant case it will, therefore, have to be examined whether the alleged transfer in favour of the petitioner is specifically permitted or recognised by any of the provisions of the Ceiling Act, or the ordinance that has been issued permitting transfer to certain categories of persons. It may also have to be considered whether the transferees had otherwise acquired an indefeasible right in the property which was a subject matter of transfer. 7. Learned counsel for the petitioners stated that in any event, it must be held that Anil Kumar and the petitioners did not have land in excess of ceiling area. He contended that on Gopi Ram's death Anil Kumar and his four sisters; namely, petitioners 1 to 3 and Most. Sharda Devi Singhania became landholders. Since they have undefined interest in the property five units have to be allotted to them for the purpose of determination of the surplus land. The total land in the family even on the basis of the draft statement, being 85.18 acres there was no surplus land held by them. 8. It may be stated that it is an accepted position that Gopi Ram died after the coming into force of the Hindu Succession Act, 1956, the date of his death being 22.2.1973. The position has thus to be examined in the light of the provisions of the Hindu Succession Act. It may, however, be stated that before the Hindu Succession Act, came into force the position was, in view of provisions of the Hindu Women's Rights to Property Act, that on the death of a Hindu governed by Mitakshara school of Hindu Law after 14.4.1937 (and before 17.6.1956) his widow took the same interest in the property which he himself had. The only limitation that the widow's interest was a limited interest known as Hindu Womens estate. Since in a Hindu co-parcernery the members thereof have undefined interest, it necessarily follows that the interest of the widow on the death of her husband was also undefined. That interest was subject to the same fluctuation, as her husband's interest was. It has been observed in Smt. Sabujpari and another Vs. Since in a Hindu co-parcernery the members thereof have undefined interest, it necessarily follows that the interest of the widow on the death of her husband was also undefined. That interest was subject to the same fluctuation, as her husband's interest was. It has been observed in Smt. Sabujpari and another Vs. Satrughan Isser and others : "It is in my mind quite clear that under this law the widow is given the same rights in the property which her husband had as member of the joint family. The interest of the husband in the present case, as I have said already was liable to fluctuation; that is to say, if there was a birth in the family his share was reduced, if there was a death in the family, there was augmentation to his share. Likewise, after his death, so far as the interest of his widow is concerned, that interest again is subject to the same fluctuation." This view was affirmed by a full bench of this court in Mt. Khatrani Kuer V. Smt. Tapeshwari Kuer where it was observed: "But the interest which she (widow) gets in the joint family property is the same as that of her husband. This means that so long as she does not claim partition, her interest is liable to fluctuate i.e. increase or decrease, on the death or birth of a coparcener." The full Bench also approved the observation of Gajendra Gadkar, J. in Shivappa Laxman V. Yellawa Shivappa to the following effect: "It appears that Legislature intended that the family should, despite this special devolution of interest on the widow continue joint as before. Therefore, after the death of her husband, the widow continues to be a member of the joint family with the said interest vested in her. One inevitable result of this position is that the quantum of her share would be liable to fluctuations, as indeed was the undivided share of her husband in his life time. The share would be determined when partition takes place and it is now competent to the widow to claim partition and have her share determined and separated." Thus it is clear that the interest of a widow whose husband dies after 14.4.1937, is an undefined interest. In our view such interest continues undefined even after coming into force of the Hindu Succession Act. In our view such interest continues undefined even after coming into force of the Hindu Succession Act. Section 14 of the Hindu Succession Act, only enlarged her limited interest and she became full owner in respect of the property held by her husband. It, therefore, follows that interest of such widow or widows remains undefined even after coming into force of the Hindu Succession Act. Therefore, if in a proceeding under the provision of the Ceiling Act, a question arises whether a widow or widows have defined interest, the authorities have to proceed on the basis that the interest is undefined and fluctuating. Thus, for instance, if the coparcenary consists of a father and son, and the father dies leaving behind two widows, the son and the two widows, having undefined shares in the joint family property, have all to be treated land-holders. In this situation three units would be permissible to them if a question arises whether the joint family consisting of the son and the widows holds land in excess of ceiling area. It may, however, be clarified that the interest remains undefined only till a suit for partition is filed or till a separation is otherwise brought about. 9. The position would, however, be different where a Hindu dies after coming into force of the Hindu Succession Act, 1956 and leaves behind a female relative specified in clause I of the Schedule or a male relative, specified in that clause who claims through such female relative. In such a situation the interest of the deceased in the Mitakshara coparcenary property devolves by the testamentary or intestate succession as the case may be, under the provisions of the Hindu Succession Act. The persons entitled to the interest of the deceased Hindu take defined interest in the property and the undefined interest in the deceased becomes defined and they hold the property as tenants in common. 10. In order to appreciate this legal position it may first be necessary to extract the relevant provisions of the Hindu Succession Act. The persons entitled to the interest of the deceased Hindu take defined interest in the property and the undefined interest in the deceased becomes defined and they hold the property as tenants in common. 10. In order to appreciate this legal position it may first be necessary to extract the relevant provisions of the Hindu Succession Act. Section 6 so far as is relevant is as follows: "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivership upon the surviving members of the coparcenary and not in accordance with the Act: Provided that, if the deceased had left him surviving a female relative specified in class-I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivership. Explanation-1. For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not." Section 8 lays down the general rule of succession in case of a male Hind dying intestate. Section 9 states the order of succession among the heirs in the schedule. Section 19 may also be quoted which is as follows :- "If two or more heirs succeed together to the property of an intestate, they shall take the property :- (a) Save as otherwise expressly provided in this Act, per capita and not per stripes; and (b) as tenants-in-common and not as joint tenants." The effect of proviso to section 6 read with Explanation 1 is that when the deceased leaves behind an heir specified in the proviso the share of the deceased coparcener has to be determined on the assumption and deemed fiction that a partition of the property has taken place immediately before his death. The Explanation points out that such legal fiction has to be given effect to irrespective of the fact whether the deceased coparcener is entitled to claim partition or not. The Explanation points out that such legal fiction has to be given effect to irrespective of the fact whether the deceased coparcener is entitled to claim partition or not. The import of the aforesaid sections has been considered in several cases. We may only refer to two of them. In Sushilabai Ramchandra Kulkarni V. Narrayan Rao Gopal Rao Deshpande & others a full Bench of the Bombay High Court held: It cannot be disputed that devolution by testamentary or intestate succession of the property of the deceased coparcener in coparcenary property cannot take place unless his share therein is determined or specified. How that share is to be determined is laid down in the Explanation and that is on the footing that immediately before his death a partition has been effected and he has been allotted a share. Explanation I provides for machinery for determining the quantum of such shares in the joint family property but the severance is implicit in the language of the proviso itself." In Karuppa Gounder & others V. Palanimmal & others a division Bench held: "It is that persons entitled to succeed to the interest of deceased coparcener under this Act, shall not be subject to that hazard of the fluctuating fortunes of the family. The Act, in so far as female heirs, are concerned; enlarged the Hindu Women's Right to Property Act. The Act, itself determines that share of the heir shall be and it specifies clearly to be that share on partition, if partition had been effected immediately, before the coparcener's death. Though factually no partition may have taken place, the quantum of the share of the female heirs is effectively determined by this provision and no curtailment of that share is permissible on footing of the existence of the joint family or of the valid exercise of the power of the father to make a gift." Reference to section 19, which has already been quoted, also leads to the same conclusion. It states that two or more heirs succeed to the property as tenants-in-common and not as joint tenants. It is well known that a tenant-in-common has a distinct fixed share in the property which has not yet been divided among co-tenants. It is thus clear that where the proviso to section 6 is applicable the interest of the deceased coparcener in the property devolves in definite and specified shares. It is well known that a tenant-in-common has a distinct fixed share in the property which has not yet been divided among co-tenants. It is thus clear that where the proviso to section 6 is applicable the interest of the deceased coparcener in the property devolves in definite and specified shares. Such being the position the heirs (and legatees) of such a deceased, although landholders under the Act, have defined interest in the property and it is on this basis that the authorities under the Act, would have to examine as to how much land is surplus in the hands of the various land holders. 11. It may be stated that in Ganesh Bharti Vs. State of Bihar & others there is an observation which may be interpreted to mean that irrespective of the point of time when a male Hindu coparcener dies, his widows may be treated to have undefined interest. That observation was based on a concession that the two ladies in question had undefined interest in the property. That decision cannot be taken as authority to mean that even where the death of a Hindu coparcener takes place after 17-6-1956 his widow or widows have undefined interest in the property. 12. Reverting to the fact of this case Gopi Ram Marwari died, as already stated, before the service of draft statement on him. At the time of his death he and his son constituted the Hindu coparcenery. Under the provisions of Section 6 read with Section 8 of the Hindu Succession Act, the interest of Gopi Ram in the property devolved on his son and daughter. In the facts and circumstances of this case it is clear, therefore, that it was necessary to issue notices on the daughters as well and in their presence determine the area, if any, which should be declared as surplus under the provisions of the Ceiling Act. The determination in this case without notice to the petitioners vitiates the entire determination so far as they are concerned. 13. It would be proper now to summarise the conclusions so far as legal aspects are concerned. The determination in this case without notice to the petitioners vitiates the entire determination so far as they are concerned. 13. It would be proper now to summarise the conclusions so far as legal aspects are concerned. They are: (a) The Ceiling Act, does not envisage the determination of the ceiling area of a dead person, Where, therefore, a person dies before the start of the proceeding under the provisions of the Ceiling Act, surplus has not be determined with respect to the property which the deceased landholder held on 9.9.1970 and would have held or be deemed to have held, on the date of the declaration or final publication of the draft statement had he been, alive on that date. It is the ceiling area of a living person which has to be determined in a proceeding under the Act. (b) Similar is the position where the proceeding has been started against the landholder who has died during the pendency of the proceeding but before the declaration of his land as surplus within the provisions of the Ceiling Act. In such a situation a fresh proceeding has to be started, if at all, against persons on whom his interest devolves, of course, clubbing together the other lands held by such person. Thereafter, it has to be determined whether the individual-land-holder or land-holders held land in the excess of the ceiling area. (c) If a Hindu male coparcener dies after coming into force of Hindu Women's Rights to Property Act, and before coming to force of Hindu Succession Act, leaving behind other coparceners and one or more widows, all of them hold undefined and unascertained interest in the family property and the determination under the Ceiling Act, must proceed on that basis. (d) In case a Hindu male coparcener dies after the coming into force of Hindu Succession Act, 1956 leaving behind a female or male relative mentioned in clause 1 of the Schedule to the said Act, his interest in the property devolves in defined and ascertained shares in accordance with provisions of the Act. Each of such person must be treated as landholder having defined interest in the property in relation to the interest of the deceased coparcener. (e) Section 3 of the Ceiling Act, prevails over section 20 of the Santhal Parganas (Supplementary provision) Tenancy Act, 1949. Each of such person must be treated as landholder having defined interest in the property in relation to the interest of the deceased coparcener. (e) Section 3 of the Ceiling Act, prevails over section 20 of the Santhal Parganas (Supplementary provision) Tenancy Act, 1949. If a transfer has been made under express permission granted under any of the provision of the ceiling law, the same has to be recognised for deciding the question of surplus area under the provision of the ceiling Act. 14. In view of the legal position as explained, it would be necessary for the authorities to determine whether Anil Kumar Tekriwal or the petitioners held land in excess of the ceiling area prescribed under the Act. We accordingly allow this writ application and quash Annexures-1 and 3 and direct reconsideration of the entire matter in accordance with law and in the light of the law as explained. It will be open to the petitioners to file objection to the draft statement which has been issued in this case. In case some land is found to be in excess of ceiling area option must be given to the land-holder or land-holders to indicate the land that is proposed to be retained and the land which may be declared as surplus. We fix 30th May, 1977 as the date on which the petitioners must appear and file their objection before the Land Reforms Deputy Collector. On that date another date should be fixed for hearing of their objections and those by Anil Kumar Tekriwal. Since Anil Kumar is not before us it would be necessary that a notice be issued to him fixing the date of hearing of the objections. In the circumstances of this case we would not make any order as to costs. Application allowed.