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1983 DIGILAW 237 (RAJ)

Gopal Singh v. State of Rajasthan

1983-05-12

DWARKA PRASAD

body1983
DWARKA PRASAD, J.— This writ petition has been filed against the order passed by the Board of Revenue for Rajasthan at Ajmer dated August 18, 1972 in a matter relating to the determination of surplus land under the Ceiling Law. 2. Gopal Singh petitioner was formerly the Jagirdar of the Jagir Amli Kalu Singh in Bhilwara District of the State of Rajasthan, which was resumed on Aug 23,1954. The Sub-Divisional Officer, Shahpura initiated proceedings under Chapter III-B of the Raj Tenancy Act, 1955 for determination of the extent of ceiling area which could be lawfully continued to be held by Gopal Singh and his family members. The Sub-Divisional Officer, by his order dated September 2, 1971 held that Gopal Singh had in his possession 97 standard acres of land in-excess of the ceiling limit and directed that the excess land be resumed. An appeal preferred by the petitioner before the Revenue Appellate Authority, Udaipur was dismissed on February 2, 1972. The petitioner preferred a revision petition before the Board of Revenue for Rajasthan, which was partly allowed on August 18, 1972 to the extent of recognising the transfer made by the petitioner Gopal Singh on September 3, 1959 in favour of Chanchal Singh in respect of land measuring 80 Bighas. The Board of Revenue consequently remanded the case to the Sub-Divisional Officer, Shahpura, for reconsideration of the matter relating to 80 Bighas of land sold by the petitioner to Chanehal-Singh. The remaining submission made on behalf of the petitioner before the Board of Revenue were rejected. 3. It is not in dispute that 647 Bighas and 18 Biswas of land stood in the name of Gopal Singh petitioner while 23 Bighas and 8 Biswas of land were entered in the revenue record in the name of his wife. Thus, 671 Bighas and 6 Biswas of land were entered in the name of Gopal Singh and his wife, out of which 267 Bighas and 15 Biswas of land were transferred by the petitioner by means of various sale-deeds to different persons prier to December 31, 1969 and the sale of aforesaid land to the extent of 267 Bighas and 15 Biswas, was recognised by the Sub Divisional Officer while determining the extent of excess land over and above the ceiling area applicable to the petitioner. Out of the remaining land measuring 463 Bighas 11 Biswas, the Board of Revenue also recognised the transfer of 80 Bighas of land, effected by the petitioner Gopal Singh in favour of Chanchal Singh by a sale deed dated September 3, 1959. The Sub-Divisional Officer had refused to recognise the transfer of 80 Bighas of land allegedly sold to Chanchal Singh, because of the tact that Chanehal Singh was the brother-in-law of Gopal Singh. However, the Board of Revenue, while considering the revision petitioner of Gopal Singh, held that the lower court committed an illegality in not recognising the transfer of aforesaid land in favour of Chanehal Singh. Thus, when the transfer of 80 Bighas of land sold by the petitioner Gopal Singh to Chanchal Singh, by means of the sale deed dated September 3, 1959 has been recognised, then 383 Bighas and 11 Biswas of land remained in the name of the petitioner Gopal Singh and his wife. 4. The Sub-Divisional Officer held that there were seven members in the family of Gopal Singh, including himself, his wife and a son Bhagwant Singh and his wife and their minor sons and minor daughters and held that the family was entitled to 40 standard acres of land, in accordance with the provisions of Section 30-C of the Rajasthan Tenancy Act (hereinafter referred to as the Act. 5. An argument which advanced before the Board of Revenue on behalf of the petitioner that the land standing in the name of the wife of Gopal Singh should not be clubbed along with his land was not accepted by the Board and in my view rightly. The definition of family as given in Section 30-B of the Rajasthan Tenancy Act, is that a family consisted of a husband and wife, their children and grand children, being dependent on them and the widowed mother of the husband, so dependent. Thus, the wife constitutes a member of the family along with her husband and their dependent children and grand-children. Thus, the wife constitutes a member of the family along with her husband and their dependent children and grand-children. The land standing in the name of the wife of Gopal Singh was therefore, rightly clubbed along with the land standing in the name of Gopal Singh himself in accordance with the provisions of Rule 17 (1) of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 (hereinafter referred to as the Ceiling Rules), while calculating the extent of land for the purpose of determining the ceiling area applicable to the petitioner. Any land held individually by a member of the family shall be deemed to be held by the family, according to Rule 17 (1) of the Ceiling Rules and as such the land standing in the name of the wife of Gopal Singh must be deemed to be held by the family, consisting of Gopal Singh and his wife and dependent children and grandchildren. 6. Two other arguments, which were advanced by the petitioner before the Board of Revenue and were also advanced before me, namely, that the competent authority erred in not recognising the partition effected by Gopal Singh on November 29, 1963 in respect of his three sons and also in refusing to recognise the partition effected by Gopal Singh on September 22, 1965 in respect of 63 Bighas and 16 Biswas of land in favour of his sister-in-law Smt. Chandeliji but they were not seriously pressed before me, by the learned counsel for the petitioner So far as the partition alleged to have been effected by Gopal Singh in respect of his three sons Daulat Singh, Surendra Singh and Brijraj Singh, by means of a registered document dated November 29, 1963 is concerned, the Board of Revenue observed that a partition effected in accordance with the provisions of Section 53 of the Rajasthan Tenancy Act could also be recognised for the purpose of Section 30-D of the Act and as the partition in favour of the three sons was not effected by Gopal Singh petitioner in accordance with the provisions of Section 53 of the Act, the same was not recognised. So far as the transfer made in favour of Smt. Chandeliji is concerned, in para 11 of the writ petition it is admitted that she was separate from the petitioner and that she already held 18 Bighas and 9 Biswas of land in her khatedari. Smt. Chandeliji was not entitled to any share at a partition, even if the land held by Gopal Singh petitioner may be considered to be a joint family property. Moreover, the document dated September 22, 1965 which is said to have been executed by Gopal Singh, effecting the transfer of 63 Bighas and 16 biswas of land in favour of Smt. Chandeliji by way of partition has not been produced before this court. As Smt. Chandeliji was not entitled to a share by partition, the so-called partition effected in her favour on September 22,1965 by GopalSingh was a bogus and sham transaction and the competent authority under the Act rightly refused to recognise such transfer for the purposes of determination of ceiling area applicable to Gopal Singh. 7. Moreover, the sales made by Gopal Singh in favour of his three sons were admittedly effected by registered sale-deeds dated October 26, 1970, much after the date specified in Section 30-DD and as such these transfers could not be lawfully recognised Learned counsel for the petitioner submitted that agreements to sell made in respect of such sales were executed by Gopal Singh petitioner in the year 1969. It may, however, be pointed out that mere agreements to sell do not create any right or interest in property sought to be sold, as has been made clear in section 53 of the Transfer of Property Act. The petitioner Gopal Singh was not authorised to transfer lands in any case after 30th December, 1969 which is the date specified in Section 30-DD and transfers made thereafter cannot be recognised for purposes of determination of ceiling area. Similarly, transfers made by Gopal Singh in favour of his grand-children have also not been recognised for identical reasons and no argument in respect thereof was made before me. 8. Similarly, transfers made by Gopal Singh in favour of his grand-children have also not been recognised for identical reasons and no argument in respect thereof was made before me. 8. The principal argument, which was advanced by learned counsel for the petitioner before this Court was that according to Rule 17 (2) read with Rule (4) of the Ceiling Rules the share of three major sons of Gopal Singh, who were not considered to be dependent upon him by the Sub-Divisional Officer, should not have been nationally separated and the total land standing in the name of Gopal Singh petitioner and his wife should have been reduced to the extent of the shares which the three major sons were entitled to have in the joint family property. It was argued by the learned counsel for the petitioner that the land in question was ancestral property and the sons of the petitioner had a right to obtain a share therein by birth and while determining the ceiling area applicable to Gopal Singh, the share of his three major, sons who were not dependent upon him, should have been excluded. Sub-rules(l), (3) and (4) of Rule 17, which are relevant for the purpose of deciding the question raised by the learned counsel for the petitioner, are as under :- "17.(l)For the purpose of determining the ceiling area, all the lands held individually, by any member of a family, or jointly by some or all of the members of a family, shall be deemed to be held by the family. (3) In calculating the extent of land held by a family or by an individual person the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company shall be taken into account. (3) In calculating the extent of land held by a family or by an individual person the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company shall be taken into account. (4) The share of a family or of an individual person in the land held by an Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individual (whether incorporated or not) or by a company shall be deemed to be the extent of land which in case such share is held on the appointed date would have been allotted to such a member, person or family had such land been partitioned or divided, as the case may be, on such date; or which, in case such share is acquired in any manner what soever after the appointed date, would be allotted to such member, person or family if a partition or division were to take place on the date of determination of the ceiling area. " 9. It is not disputed before me that Gopal Singh is an ex-Jagirdar and the lands which have been entered in his name as khatedar tenant were allotted to him as khudkasht land and khatedari rights accrued to him in respect thereof on account of the provisions of Secs. 9 and 10 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and Section 13 of the Rajasthan Tenancy Act. Section 10 of the Jagir Resumption Act provides that from the date of resumption of any Jagir land, any khudkasht land of a Jagirdar should be deemed to be held by the Jagirdar as a khatedar tenant thereof An identical provision has been made in Section 13 of the Rajasthan Tenancy Act which provides that on the resumption or abolition of an estate, the estate holder holding khudkasht land shall become a khatedar tenant thereof and shall be entitled to all rights conferred upon and be subject to all the liabilities imposed on a khatedar tenant by the Act. Thus, although after the resumption of the Jagir. Thus, although after the resumption of the Jagir. the petitioner Gopal Singh became a khatedar tenant in respect of the khudkast land standing in his name, yet the said lands were not held he Gopal Singh in his individual capacity but they were held by him as a karta of the Hindu undivided family. 10. In the State of U. P. Vs. Rajkumar Rukmini Raman Brahma (1); it was held by their Lordships of the Supreme Court that an estate which is impartible by custom cannot be said to be the separate and exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and succeeded to it by the rule of primogeniture, it would form part of the joint estate of the Hindu undivided family. Their Lordships observed as under in the aforesaid case :- "It must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartiality as was laid down by the Privy Council in the case of Rani Sartaj Kuari V. Deoraj Kuari (1887-1888) 15 Ind. App. 51 (PC) and the first Pitiapur case (1899) 26 Ind App. 83 (PC). The right of maintenance and the right of survivorship, however, still remain and is by reference to these rights that the property, though impartible has in the eye of law, to be regarded as joint family property. " 11. Thus, if the impartible character of the property was lost on account of the resumption of jagir, then the property would still bear the character of a joint family property. " 11. Thus, if the impartible character of the property was lost on account of the resumption of jagir, then the property would still bear the character of a joint family property. A similar matter was considered by a division bench of this Court in Thakur Gopal Singh of Badnor vs. Commi. of Wealth Tax, Rajasthan, Jaipur(2),wherein a question about the nature and character of the compensation received by the ex-Jagirdar upon the abolition and resumption of his Jagir arose for consideration. Their Lordships held that the Jagir was hereditary and ancestral property and the Junior members of the family had acquired their rights and interest by birth,although only the right of succession by survivorship could be exercised, on account of the impartible nature of the Jagir. But as the Jagir was not the absolute property of the Jagirdar, it was a joint family property governed by the rule of primogeniture which belonged to the Hindu undivided family of the Jagirdar and when the Jagir was resumed the compensation awarded in respect of such joint family property was not separate property of the ex-Jagirdar but was joint family property, because the character of the compensation could not be different from that of the Jagir itself, in liue of resumption of which the same was paid. The khudkasht land, which the ex-Jagirdar was allowed to retain on the resumption of his jagir and in which he acquired khatedari rights under Section 13 of the Rajasthan Tenancy Act, on the abolition and resumption of Jagir, must bear the same character as that of the Jagir, namely that the said land was joint family property in the hands of the ex-Jasirdar. The Board of Revenue observed that there was nothing on the record to show that the petitioners family was a joint Hindu family. I am unable to agree with the view taken by the learned member of the Board of Revenue in this respect. The very fact that the Jagir was an ancestral property and the Jagirdar was holding the Jagir as property of the Hindu undivided family, with a rider that the members of the family could not get a partition effected because of the fact that by custom the Jagir property was impartible in nature and was governed by the rule of primogeniture. However, since the Jagir was resumed, the impartible character of the property was lost and the joint family property became subject to partition. So the co-sharers could exercise other rights as coparceners in the joint family property. The khudkasht land held by the Jagirdar must, therefore, be held by him on behalf of and for the benefit of the joint Hindu family, of which he was the karta and although the ex-jagirdar became the khatedar tenant in respect of such Khudkasht land, yet the Khatedari rights were held by him on behalf of the joint Hindu family of which he was the Karta. The Junior members of the family were entitled to seek partition of the joint family property, namely the khudkasht land held in the name of Gopal Singh. 12. According to the admitted facts of the case, Gopal Singh petitioner had 4 sons, namely, Bhagwant Singh, Daulat Singh. Surendra Singh and Brijraj Singh, out of whom Bhagwant Singh remained with his father. His three other sons were as such entitled to their respective shares in the lands held by the Hindu undivided family and while determining the ceiling area applicable to Gopal Singh, the extent of land which the three sons would have obtained, if a notional partition of the Hindu undivided family properties would have been effected on the appointed date, is liable to be excluded. A combined reading of sub-rules (2) and (4) of R. 17 go to show that while calculating the extent of land held by the family, consisting of Gopal Singh, his wife and dependent children and grandchildren, the share of the members of the family in the land held by the Hindu undivided family has to be taken in to account. According to sub-rule (4) such share shall be deemed to be the extent of land which would have fallen to the share of such member in case a partition would have taken place on the appointed date. In this view of the matter, the remaining land measuring 383 bighas 11 biswas, standing in the name of Gopal Singh and his wife has to be divided into six shares, including the shares of Gopal Singh, his wife and 4 sons. In this view of the matter, the remaining land measuring 383 bighas 11 biswas, standing in the name of Gopal Singh and his wife has to be divided into six shares, including the shares of Gopal Singh, his wife and 4 sons. As the shares of 3 sons was liable to be excluded, who were not dependent and did not form part of his family, would be taken into consideration while calculating the extent of land held by the family of Gopal Singh, for determining the ceiling area applicable to such family. The extent of area of land which would have fallen to the share of Gopal Singh, his wife and dependent son, Bhagwant Singh, could have been clubbed together under R. 17 (1) for determining the ceiling area applicable to the family, of which Gopal Singh was the karta. Thus, after the exclusion of the shares of 3 sons of Gopal Singh, if a notional partition would have taken place on the appointed date, according to Rule 17 (4) of the Ceiling Rules, then only 191 bighas 15-1/2 biswas of land would be available for determining the ceiling area applicable to Gopal Singh. The Sub-Divisional Officer should now determine the ceiling area applicable to Gopal Singh in terms of standard acres in the light of the aforesaid observations and he should then determine the extent of the area of land which is held by Gopal Singh and his wife in excess of the ceiling limit and which was liable to be resumed in accordance with the provisions of Chapter III-B of the Rajasthan Tenancy Act and the Ceiling Rules. 13. The writ petition is partly allowed and the order passed by the Board of Revenue for Rajasthan dated August 18, 1972 is set aside only to the extent indicated above. As the matter is very old, the Sub-Divisional Officer, Shahpura, is directed to decide the question of ceiling area applicable to Gopal Singh in terms of standard acres at an early date and then proceed to determine the land held by him in excess of the permissible ceiling area. Of course, it would be open to the petitioner to exercise his option after the final determination of the excess land is made. The parties are left to bear their own costs.