GAURIBHAI SOMABHAI AMIN v. STATE — 1994 DIGILAW 132 (GUJ)

DIVECHA, J. ( 1 ) THE order passed by and on behalf of the respondent on 22nd June 1987 under Sec. 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (the Ceiling Act for brief) is under challenge in this petition under Art. 226 of the Constitution of India. Thereby the respondent revised the order passed by the Competent Authority at Ahmedabad on 8th March 1983 and declared the holding of petitioner No. 6 to be in excess of the ceiling limit by 1478 sq. mts. ( 2 ) THE facts giving rise to this petition move in a narrow compass. Petitioners Nos. 1, 6 and 7 are brothers (the brothers for convenience ). Petitioners Nos. 2 to 5 are sons of petitioner No. 1 and petitioners Nos. 8 and 9 are sons of petitioner No. 7. The three brothers appear to have purchased one consolidated parcel of land bearing Survey No. 337/1+2+3 in all admeasuring 10622 sq. mts. situated at Bodakdev within the Urban Agglomeration of Ahmedabad (the disputed land for convenience) on 28th January 1972 under a duly registered sale document. It is the case of the petitioners that the disputed land was purchased in the name of the three brothers out of their joint family fund and it was understood that each petitioner had his equal share therein. Pursuant to that understanding an agreement of partition was executed on 8th December 1974 partitioning the disputed land equally amongst all these petitioners. Its copy is at Annexure-E to this petition. On coming into force of the Ceiling Act each petitioner filled in the prescribed form under Sec. 6 (1) of the Ceiling Act showing his 1/9th share in the disputed land. Since the subject-matter of all the prescribed forms separately filled in by the petitioners herein was common, the competent authority at Ahmedabad consolidated the proceedings arising therefrom and by his common order passed on 8th March 1983 in the said proceedings declared the holding of each petitioner to be within the ceiling limit for the purposes of the Ceiling Act. Its copy is at Annexure-C to this petition. It appears that the order at Annexure-C to this petition came to the notice of the concerned officer of the respondent. He appears to have found it not according to law. It was thought of revising under Sec. 34 of the Ceiling Act. Its copy is at Annexure-C to this petition. It appears that the order at Annexure-C to this petition came to the notice of the concerned officer of the respondent. He appears to have found it not according to law. It was thought of revising under Sec. 34 of the Ceiling Act. Apropos a show cause notice came to be issued to the petitioners on 24th September 1985 calling upon the petitioners to show cause why the order at Annexure-C to this petition should not be revised. A copy of the aforesaid show cause notice is at Annexure-A to this petition. It appears that the petitioners filed their reply to the show cause notice. After hearing the parties by the order passed by and on behalf of the respondent on 22nd June 1987, the order at Annexure-C to this petition was revised and it was declared that the holding of petitioner No. 6 was in excess of the ceiling limit by 1478 sq. mts. Its copy is at Annexure-B to this petition. That aggrieved all the petitioners. They have, therefore, moved this Court by means of this petition under Art. 226 of the Constitution of India for questioning its correctness. ( 3 ) SHRI Oza for the petitioners has submitted that the agreement of partition at Annexure-E to this petition was in the nature of a family arrangement or at the most a memorandum of partition and it was not amenable to the Indian Registration act, 1908 (the Registration Act for brief ). Shri Oza has further submitted that the revisional powers under Sec. 34 of the Ceiling Act have been exercised after unreasonable length of time and it has resulted in unsettling of settled transactions which the petitioners entered into with certain persons prior to receipt of the show cause notice at Annexure-A to this petition. As against this Shri Dave for the respondent has urged that the document at Annexure-E to this petition is a deed of partition, both in its letter and spirit and it cannot be looked into for any purpose as it has not been executed on payment of the required stamp duty and for want of its registration according to law. As against this Shri Dave for the respondent has urged that the document at Annexure-E to this petition is a deed of partition, both in its letter and spirit and it cannot be looked into for any purpose as it has not been executed on payment of the required stamp duty and for want of its registration according to law. Shri Dave for the respondent has further urged that no time limit is prescribed for the exercise of revisional powers under Sec. 34 of the Ceiling Act in view of the binding ruling of this Court in the case of haresh Kantilal Vora v. Competent Authority and Addl. Collector, Rajkot and Anr. repoted in 1992 (2) GLH 424 . ( 4 ) THE moot question is whether or not the document at Annexure-E to this petition is a deed of partition or it is memorandum of family arrangement reduced to writing or a memorandum of partition already taken place earlier. It cannot be gainsaid that the concept of family arrangement is different from the concept of partition of a joint property. In the case of partition jointness of holding is brought an end to and shares of the joint holders are specifically determined in it according to law. If it is the case of partition of a coparcenary property, the principles of the Hindu Law in that regard would be taken into consideration. However, in the case of family arrangement, while disrupting the jointness of the property or properties, shares of joint holders will not specifically be determined according to law. In the case of family arrangement a share might be earmarked for a person who might not be a joint holder in stricto sensu. Keeping in mind these two clearcut concepts of partition and family arrangement it cannot be gainsaid that the document at Annexure-E to this petition is either a memorandum of partition or a family arrangement reduced to writing but it cannot be both. It is true that Shri dave for the respondent has submitted that the document at Annexure-E to this petition is a deed of partition and neither a memorandum of partition nor a family arrangement reduced to writing. It is true that Shri dave for the respondent has submitted that the document at Annexure-E to this petition is a deed of partition and neither a memorandum of partition nor a family arrangement reduced to writing. However, at present I may deal with the submission urged before me by Shri Oza for the petitioners to the effect that the document at Annexure-E to this petition can be styled either as a memorandum of partition or a family arrangement reduced to writing. In view of the aforesaid clear-cut distinction between the two concepts of memorandum of partition and family arrangement reduced to writing, Shri Oza for the petitioners has submitted that the document at Annexure-E to this petition would be in the nature of family arrangement reduced to writing. ( 5 ) IT is obvious that the document at Annexure-E to this petition cannot be a memorandum of partition for the simple reason that, if what was sought to be done was to reduce to writing the fact of partition taken place earlier, that could have been done only in accordance with the relevant principles of the Hindu Law in that regard. It cannot be gainsaid that the petitioners are Hindus. It is their case that the disputed land was purchased out of their joint family funds. As rightly submitted by Shri Dave for the respondent, if the joint family property in the shape of disputed land was required to be partitioned amongst the petitioners, it could have been done in accordance with the principles of the Hindu Law applicable in that regard. It cannot be gainsaid that the principle of partition in that case would firstly be per branch and thereafter per person. As pointed out hereinabove, the case of the petitioners was and is that the disputed land was purchased out of the joint family funds. As pointed out hereinabove, petitioners Nos. 1, 6 and 7 are brothers and the remaining petitioners are their sons. It may be mentioned at this stage that petitioner No. 6 did not have any male child. In that view of the matter, partition of the disputed land will have to be made first of all according to the branch of the three brothers and thereafter the share of each branch will further be divided amongst the male members of that branch. In that view of the matter, partition of the disputed land will have to be made first of all according to the branch of the three brothers and thereafter the share of each branch will further be divided amongst the male members of that branch. Thus, division or partition of the property would be in accordance with the relevant principles of the Hindu Law in that regard. The document at Annexure-E to this petition seeks to divide the property in equal share amongst all the petitioners and not firstly according to branch and thereafter according to members of that branch. ( 6 ) SHRI Oza for the petitioners is, however, on somewhat sounder footing in his submission that it can be styled as a family arrangement reduced to writing. Even if the document at Annexure-E to this petition is read in its entirety, it becomes clear that at the time of its purchase it was agreed that though the properties would be purchased in the names of three brothers, all the petitioners will have their equal share therein. This intention of the parties becomes clear from the very introductory paragraph found therein after the names and description of the parties to that document. It has clearly been mentioned therein that pursuant to the agreement arrived at between the parties at the time of purchase of the disputed land the property in question is divided amongst its joint holders. It cannot be gainsaid that if the disputed land was required to be partitioned petitioners nos. 1, 6 and 7 would have the 1/3rd share each and petitioners Nos. 2 to 5 will have their respective share in the 1/3rd share falling to the share of petitioner No. 1 and petitioners No. 8 and 9 would have their respective share in the 1/3rd share falling to the share of petitioner No. 7. It, however, transpires from the introductory paragraph to the document at Annexure-E to this petition that at the time of its purchase it was agreed amongst the petitioners that each petitioner would have an equal share therein. It would mean that the family arrangement of shares of the petitioners herein in the disputed land was made at the time of its purchase. It would mean that the family arrangement of shares of the petitioners herein in the disputed land was made at the time of its purchase. The document at Annexure-E to this petition has merely reduced to writing the said arrangement arrived at between the parties at the time of purchase of the disputed land. It may be mentioned at this stage that the document at Annexure-E to this petition was executed on 8th December 1974 and not between the period from 17th february 1975 and 17th February 1976 (the prohibited period for convenience ). If it was executed within the prohibited period, different considerations would have arisen. It could have been styled as a device to defeat or to frustrate the relevant provision contained in the Ceiling Act. However, since it has been executed before the prohibited period it would be difficult to give any colour of ulterior motive to its execution. The transaction will have to be accepted as genuine. It will have to be styled as a family arrangement arrived at between the parties at the time of purchase of the disputed land reduced to writing. No other construction of the document at Annexure-E to this petition is possible. ( 7 ) THE contrary submission urged before me by Shri Dave for the respondent to the effect that the document at Annexure-E to this petition is a deed of partition cannot be accepted for the simple reason that it is not partition of any joint family property in accordance with the relevant principles of the Hindu Law in that regard. ( 8 ) ONCE it is found that the document at Annexure-E to this petition is a family arrangement reduced to writing it is not required to be registered in view of the binding ruling of the Supreme Court in the case of Kale and Ors. v. Deputy director of Consolidation and Ors. , reported in AIR 1976 SC 807 . v. Deputy director of Consolidation and Ors. , reported in AIR 1976 SC 807 . ( 9 ) THE author of the impugned order at Annexure-B to this petition has not accepted the genuineness of the document at Annexure-E to this petition simply on the ground that it was not registered under the Registration Act, and he has also proceeded on the footing that the document at Annexure-E to this petition was in the nature of a deed of partition partitioning the joint Hindu family property and it ought to have been partitioned according to the relevant provisions prevalent in that regard. I think he appears to have lost sight of the fact that the document at annexure-E to this petition was a family arrangement reduced to writing. If he was alive and aware to the distinction between the concepts of partition and family arrangement, he would not have falled into the error as reflected in the impugned order at Annexure-B to this petition. ( 10 ) SINCE I am holding in favour of the petitioners on interpretation of the document at Annexure-E to this petition, it is not necessary to deal with the second submission urged before me by Shri Oza for the petitioners in support of this petition to the effect that the revisional powers under Sec. 34 of the Act have been exercised after unreasonable length of time. Shri Oza for the petitioners has relied on an unreported ruling of this Court in Special Civil Application No. 5865 of 1987 decided on 24th March 1994 [jayantilal S. Shah v. State of Gujarat, reported in 1995 (1) GLR 592 ] in support of his aforesaid submission. I think it is not necessary to deal with or dwelve upon this submission at this stage in view of what I have stated hereinabove. ( 11 ) IN view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure-B to this petition cannot be sustained in law. It has to be quashed and set aside. ( 12 ) IN the result, this petition is accepted. The order passed by and on behalf of the State Government on 22nd June 1987 under Sec. 34 of the Ceiling Act at Annexure-B to this petition is quashed and set aside. Rule is accordingly made absolute with no order as to costs. .