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1999 DIGILAW 365 (RAJ)

Balram v. State of Rajasthan

1999-03-17

P.P.NAOLEKAR

body1999
JUDGMENT 1. - Ceiling proceedings were started against Ram Narain under Chapter III-B of the Rajasthan Tenancy Act, 1955. The Sub Divisional Officer Kota has declared 30.67 standard acres of land as surplus. Balram, the present petitioner, filed appeal before the Revenue Appellate Authority contending that the property in the hands of Ram Narain is an ancestral property. According to the petitioner he was adopted by Ram Narain by a registered deed dated 4.4.1966 wherein it was shown that he was adopted eleven years back and, therefore, he had a share equal to that of his father Ram Narain in the lands and that share should have been ascertained and given to him. It was also contended that there was a partition on 2.4.1971 and thus he is entitled to hold the land which came in partition in his share and that land should not have been clubbed with the lands of Ram Narain. It was accepted by the Revenue Appellate Authority that the lands in the hand of Ram Narain is an ancestral property. However, a finding has been recorded that the children during the life-time of father do not have any right in the property and thus even if the fact is proved that Balram was the adopted son of Ram Narain he would not have any right in the property held by Ram Narain so long as Ram Narain is alive. It may be pointed out here that no definite finding had been record?d by the Revenue Appellate Authority as to when Balram was adopted. On this finding the order of Sub Divisional Officer was upheld by the Revenue Appellate Authority. 2. Aggrieved by the said order of Revenue Appellate Authority, a revision petition was filed before the Board of Revenue. The Board also did not record any definite finding as regards the date of adoption of Balram by Ram Narain. It proceeded to decide the matter on the basis of a Full Bench Judgment of its own, reported in 1987 WLN (C) 223 Karni Singh & Others v. Board of Revenue & Others , taking the same view as took by the Revenue Appellate Authority and dismissed the revision petition. 3. It proceeded to decide the matter on the basis of a Full Bench Judgment of its own, reported in 1987 WLN (C) 223 Karni Singh & Others v. Board of Revenue & Others , taking the same view as took by the Revenue Appellate Authority and dismissed the revision petition. 3. It is submitted by the counsel for petitioner that the view taken by the Revenue Appellate Authority and that by the Board of Revenue regarding right in ancestral property of a son, was not in accordance with law. Under Section 40 of the Rajasthan Tenancy Act, 1955 it is provided that succession of tenancy right shall devolve in accordance with the personal law to which the tenant is subject to. Personal law, in this case, would be the Hindu Succession Act, 1956. It is a settled law that the members of a Hindu undivided family governed by the Mitakshara School of Law, gets a right in an acestral property by birth. Adoption shall be treated to be a birth and thus Balram would be entitled to share in the ancestral property equal to that of his father. The Revenue Appellate Authority and the Board of Revenue both, erred in holding that in an ancestral property also the son does not get right by birth and the succession open only after the death of tenant. That would have been the position if property held by Ram Narain (tenant) was a self acquired property. In view thereof the order of Board of Revenue dated 15.5.1981 is set aside. 4. However, there is no definite finding arrived at by the Board of Revenue regarding the date of adoption of Balram on the basis of material placed on record. The date of adoption would be material because if the adoption had taken place prior to the date of coming into force of the Ceiling Act i.e. 1.4.1966, Balram the adopted son will have a share in the property. If the adoption had taken place after the date of coming into force of the Ceiling Act, then there is no question of considering the case of Balram. The position on the date when the Ceiling Act was brought into force shall be considered for consideration of entitlement of holding under the Act. If the adoption had taken place after the date of coming into force of the Ceiling Act, then there is no question of considering the case of Balram. The position on the date when the Ceiling Act was brought into force shall be considered for consideration of entitlement of holding under the Act. In view thereof, the matter is remitted to the Board of Revenue for consideration of the question of the date of adoption of Balram and thereafter deciding the matter afresh in the light of observations made hereinabove. The petitioner is directed.to appear before the Board of Revenue on 16.4.1999. No notice is required to be issued to the petitioner in this regard. The Board of Revenue shall take up the proceedings in accordance with law.Petition allowed-Cases remanded. *******