NARANBHAI MANSANGBHAI v. STATE — 1993 DIGILAW 272 (GUJ)

D. G. KARIA, J. ( 1 ) THIS petition under Article 227 of the Constitution of India is directed against the judgment and order dated August 13 1982 passed in Revision Application No. TEN. B. A. 608 of 1981 by the Gujarat Revenue Tribunal wherein the Tribunal dismissed the Revision Application of the present petitioners and confirmed the decision of the Assistant Collector Dhrangadhra dated May 30 1981 The Assistant Collector Dhrangadhra by his judgment in Ceiling Case No. 133/76-77 held that the original petitioner No. 1 - Naranbhai Mansangbhai had transferred the agricultural lands bearing Survey No. 52 admeasuring Acres 13-02 gs. Survey No. 72 admeasuring Acres 16-09 gs. and Survey No. 121 admeasuring Acres 8-29 gs. to petitioner No. 2 the widow of his predeceased son Amthabhai Naranbhai on August 1 1971 in anticipation in order to defeat the object of Gujarat Agricultural Land Ceiling Act 1960 (hereinafter referred to as the said Act ). The petitioners had preferred the aforesaid Revision Application before the Gujarat Revenue Tribunal who dismissed the said Revision Application. The petitioners have challenged the legality and validity of the aforesaid order of the Tribunal. ( 2 ) A few relevant facts leading rise to the present petition may be stated thus. The original petitioner No. 1 - Naranbhai was the owner and occupier in respect of the land admeasuring Acres 107 13 gs. Out of the said land the original petitioner No. 1 alienated the agricultural land admeasuring Acres 77-24 gs. to Rajabhai younger son of the petitioner in the year 1956. Amthabhai Naranbhai expired on June 9 1952 leaving behind him the widow and a minor daughter at that time and that even during the life time of Amthabhai petitioner No. 2 was residing separately. It is the case of the petitioner that somewhere in the year 1968 the petitioner No. 1 had handed over the land admeasuring Acres 11-01 gs. to the petitioner No. 2 the widow of his predeceased son for her maintenance. Thereafter on August 1 1971 the petitioner No. 1 transferred three parcels of land of Survey No. 52 admeasuring Acres 13-02 gs. Survey No. 72 admeasuring Acres 16-09 gs. and Survey No. 121 admeasuring Acres 8-29 gs. in all total land Acres 49-01 gs. to the petitioner No. 2 the widow of his predeceased son for maintenance. Thereafter on August 1 1971 the petitioner No. 1 transferred three parcels of land of Survey No. 52 admeasuring Acres 13-02 gs. Survey No. 72 admeasuring Acres 16-09 gs. and Survey No. 121 admeasuring Acres 8-29 gs. in all total land Acres 49-01 gs. to the petitioner No. 2 the widow of his predeceased son for maintenance. By application dated September 27 1976 the petitioner filled-in the prescribed form for declaration under Section 8 of the said Act to the effect that the land Acres 49- 01 gs. transferred on August 1 1971 has not been transferred in anticipation in order to defeat the object of the said Act. ( 3 ) THE learned Assistant Collector by his aforesaid judgment and order held that the petitioner No. 1 has not been able to prove that he did not transfer the land admeasuring Acres 49-01 gs. with a view to defeat or defraud the object of the said Act. The learned Assistant Collector held that the petitioner transferred the land in question during the period from appointed date to the specified dale in anticipation in order to defeat the object of the Act for the following reasons: (A) The petitioner No. 1 effected the partition of the land in the year 1956 by transferring the land admeasuring Acres 77-24 gs. to his younger son Rajabhai Naranbhai and as such there was no reason for effecting the partition in favour of the widow later on and therefore the partition effected in favour of the widow of the predeceased son on August 1 1971 was no real and genuine. (B) The petitioner No. 2 -widow was residing separately; her husband Amthabhai died on June 9 1952 and the land bearing Survey No. 5 admeasuring Acres 11-01 gs. was transferred in her favour in the year 1968 and the writing dated May 31 1968 was executed. However the said writing of partition was not got registered and the writing in original was not forthcoming. Only a copy thereof was produced which was not proved in accordance with law. (C) The land admeasuring Acres 11-01 gs. was transferred in favour of the widow was never mutated in name of the widow in the relevant Revenue records and the same was continued to be in name of the petitioner No. 1 till 1977-78. Therefore the land was not actually transferred to the widow in 1968. (C) The land admeasuring Acres 11-01 gs. was transferred in favour of the widow was never mutated in name of the widow in the relevant Revenue records and the same was continued to be in name of the petitioner No. 1 till 1977-78. Therefore the land was not actually transferred to the widow in 1968. (D) The petitioner No. 1 got mutated the land of Survey No. 52 72 and 121 admeasuring Acres 38-00 gs. in Entry No. 238 on August 1 1971 in revenue records. The entry was got mutated with a view to defeat the object of the said Act. (E) The petitioner No. 1 transferred the land admeasuring Acres 11-01 gs in 1968 and thereafter transferred the land admeasuring Acres 38-00 gs in 1971 and as such petitioner No. 1 tried to create the evidence of transfer which was not free from suspicion. (F) The petitioner No. 1 gave away the land admeasuring Acres 77-24 gs. to his younger son Rajabhai whereas he gave the land admeasuring Acres 49-01 gs. to the widow and there was no reason to give her loss land. Thus there was no real and reasonable partition. On the aforesaid grounds the Assistant Collector held that the application of the petitioner could not be accepted holding that the petitioner No. 1 transferred the land in question on August 1 1971 with a view to defeat or defraud the object of the said Act. ( 4 ) THE petitioners being aggrieved by the aforesaid order of the Assistant Collector preferred the Revision Application which came to be dismissed as aforesaid. ( 5 ) MR. G N. Desai learned Advocate for the petitioners submitted that the petitioner No. 2 widow of the predeceased son was entitled to claim and get the partition in the property inasmuch as she had a right to the property and if the petitioner No. 1 gave away the lands in question by way of partition there is neither illegality nor impropriety and it cannot be said that the transaction was in anticipation in order to defeat the object of the Act. In support of his submission Mr. Desai has placed reliance on the case of V. Tulasamma vs. V. Sesha Reddi AIR 1977 SC 1945. In support of his submission Mr. Desai has placed reliance on the case of V. Tulasamma vs. V. Sesha Reddi AIR 1977 SC 1945. He also relied upon the case of Vajia vs. Thakorbhai AIR 1979 SC 993 and also in the case of Raja Karan Pershad vs. Kunwar Rani 1970 (3) SCC 947 All the three decisions relied upon by Mr. Desai are on the point of Section 14 of the Hindu Succession Act 1956 Relying upon the said judgments Mr. Desai contended that the petitioner No. 2 widow had a right of maintenance in the family property. There cannot be dispute about Hindu womens right to property under Section 14 of Hindu Succession Act 1956 There is no dispute about the right of the widow for maintenance. The question in the instant case is whether the transfer of the land is in the pretext of partition and for the alleged purpose of maintenance of the widow effected on August 1 1971 i. e. after January 24 1971 but before the specified dale i. e. April 1 1976 in anticipation in order to defeat the object of the said Act. The decisions relied upon by Mr. Desai would not be of any help to decide the question under Section 8 of the Act. The conclusion recorded by both the authorities below is to the effect that the petitioner No. 1 transferred the land in favour of the widow with a view to defeat the object of the said Act. ( 6 ) IN order to appreciate the controversy a reference to Section 8 of the said Act would be relevant It reads as under:8 (1)Where After 15th day of January 1959 but before the commencement of this Act (for after 24 day of January 1971 but before the specified date) any person has transferred whether by sale gift mortgage with possession exchange lease surrender or otherwise or partitioned any land hold by him then notwithstanding anything contained in any law for the time being in force such transfer or partition shall unless it is proved to the contrary be deemed to have been made in anticipation in order to defeat the object of this Act. (Where such transfer or partition was made after 15th day of January 1959 but before the commencement of this Act or in order to defeat the object of the Amending Act of 1972 where such transfer was made after 24th day of January 1971 but before the specified date): (Provided that where any transfer or partition of land is effected by a document required by law to be registered which is however not registered and such document purports to have been executed before 24th day of January 1971 no court shall pass a decree in any suit filed for the grant of specific relief on the basis of any such document unless the court is satisfied on merits of the case that the document is a bona fide document executed in fact before 24th January 1971 and that it is not ante-dated as a result of collusion between parties or otherwise in order to defeat the object of the Amending Act of 1972: (Provided further that nothing in this sub-section shall apply to any transfer of land by way of gift or partition made on or after the 24th January 1971 to a son who was major on the said date. ). (2) Any person affected by the provisions of sub-section (1) may within the prescribed period and in the prescribed form make an application to the Collector for a declaration that the transfer or partition was not made in anticipation in order to defeat the object of (this Act or as the case may be of the Amending Act of 1972.) (3) On receipt of such application the Collector shall hold an inquiry and after giving an opportunity to the transferor and the transferee or as the case may be to the partition to be heard and after considering the evidence which may be produced decide whether the transfer or as the case may be the partition was or was not made in anticipation in order to defeat the object of (this Act or as the case may be of the Amending Act of 1972) and accordingly may (i) reject the application or (ii) by order in writing make a declaration that the transfer or as the case may be the partition was not made in anticipation in order to defeat the object of (this Act or as the case may be of the Amending Act of 1972 ). (4) Where the application is rejected the transfer or as the case may be the partition shall be ignored in computing under this Act the area of surplus land if any held by such person. ( 7 ) ON analysis of the aforesaid provision of Sec. 8 of the Act the transfer of the land made between 24th January 1971 and 1st April 1976 is to be deemed to have been made with a view to defeat the object of the Act unless it is proved to the contrary. Therefore burden to prove contrary is on the person who transferred the land by way of sale gift mortgage exchange lease surrender or otherwise by partition to establish that the transfer is a bona fide and not made with a view to defeat the object of Act. In the present case it is not in dispute that impugned transfers are effected on August 1 1971 and therefore after 24 January 1971 the transfers thus clearly fall within the period specified in Sec. 8 of the Act. In the facts of the case the petitioner has not been able to discharge burden that the impugned transfer was bonafide. It therefore follows that the authorities below have correctly come to the conclusion that impugned transfers were made in anticipation in order to defeat the object of the Act. ( 8 ) MR. Desai has submitted that the petitioner no. 1 was justified in transferring the small piece of land in favour of the widow in the year 1968 and the land admeasuring Acres 38-00 Gs. in 1971 so that he could safeguard the family property in the event of re-marriage by the widow as there was a usage or custom of re-marriage in the caste of the petitioner. Mr. U. R. Bhatt learned A. G. P. appearing for the respondent contended that there was no evidence adduced by the petitioner No. 1 about the alleged usage or custom. These are all questions of facts and the authorities below have recorded the findings of the fact that the partition effected by the petitioner is not believable inasmush as there was no equal partition of the property between the younger son Rajabhai and the widow of his predeceased son. These are all questions of facts and the authorities below have recorded the findings of the fact that the partition effected by the petitioner is not believable inasmush as there was no equal partition of the property between the younger son Rajabhai and the widow of his predeceased son. The authorities below have come to the conclusion on the faces of the case that the so-called partition or family arrangement cannot be said to he genuine. The present petition is under Art. 227 of the Constitution of India. Mr. Desai has not been able to point out any error apparent on face of the record so as to enable this Court to interfere with the decision arrived at by the Assistant Collector and confirmed by the Tribunal. There is nothing illegal or perverse in the judgment of the Gujarat Revenue Tribunal. ( 9 ) IN that view of the matter there is no substance in the petition. The petition deserves to be dismissed and is dismissed. Rule discharged with no order as to costs. Petition Dismissed. .