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2000 DIGILAW 239 (RAJ)

Ram Pratap v. State of Rajasthan

2000-02-23

J.C.VERMA

body2000
JUDGMENT 1. :- The petitioner is aggrieved against the orders passed by the Board of Revenue dated 4.8.1980 (Annexure-F), and Collector, Bundi dated 28.11.1977 (Annexure-D). 2. Vide order Annexure-C dated 14.6.1976 the Government of Rajasthan had re-opened the case of the petitioner in regard to determination of the ceiling of land under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 and the rules made thereunder (hereinafter called as the Act and the Rules). Notice was issued to the petitioner. The Collector vide Annexure-D on 28.1.1977 had held that the khatedar was holding the land of 236 Bigha 11 Biswas in his individual name; he was also holding a joint land with Ghanshyam measuring 26 Bigha 7 Biswa from which land his share was one-third and, therefore, 8 Bigha and 16 Biswa was to be added in his land. The total land holding came to be 245 Bigha 7 Biswa. After converting the same it came to be 122.7 standard acres. The family members were said to be seven and after leaving 40 standard acres as permissible area, the remaining 82.7 standard acres were held to be surplus land. The petitioner had challenged Annexure-D before the Board of Revenue and the Board of Revenue vide Annexure-F dated 4.8.1980 had dismissed the appeal. The Board of Revenue had confirmed the finding of the Collector that any partition carried out on 28.12.1970 had no effect on the ceiling case. It was further held that the two sons were not major on 1.4.1966. It was further observed that it did not make any difference whether the holding was ancestral or not. The daughter Kamladevi was born subsequent to the date 1.4.1966 and she was excluded from the members of the family as she was not born till the cut off date. 3. Certain transfers of the land had been made by the Khatedar which transfers were ignored and the contention of the petitioner that notice to the transferees was necessary was not accepted by the Board of Revenue in the order Annexure-E. The Board of Revenue held that the claim of transfers were being made on the basis of unregistered mortgage-deed and even the copies of the documents had not been produced and thus all the transfers were ignorable. Report of the Tehsildar was sought wherein it had been mentioned that all the members were dependent on the appellant. Report of the Tehsildar was sought wherein it had been mentioned that all the members were dependent on the appellant. It was further observed that the benefit of Rule 17(4) of the Ceiling Rules are not applicable to the present case as the children were part of the family and their notional share of the partition would stand dubbed together with the share of the appellant. The law laid down in (1)1977 RRD 233 was relied for this purpose. The Board of Revenue had observed that the provisions of Section 30-DD of the Tenancy Act were not applicable to the present case. 4. The above-said orders have been challenged on the ground that the authorities below should have issued notice to the transferees and also to his major sons and that in view of Rule 17(4) of the Ceiling Rules, the share of the member of the family or of an individual person in the land held by an HUF or the share of a family or of an individual in the land, shall be deemed to be the extent of land, which in case such share is held on the appointed date, could have been allotted to such a member or person or family and had such land been partitioned or divided, as the case may be, on such date, in such situation it is the contention of the petitioner that his two major sons were not dependent on him and they should have been allowed separate share. 5. In the case of (2) V.N. Sarin Vs. Ajit Kumar Poplai and another AIR 1966 SC 432 , it was held that the partition of Hindu joint family was not a transfer within Section 14(6) of the Transfer of Property Act. It was held as under: 'Having regard to the basic character of joint Hindu family property, each coparcener has an antecedent title to the said property though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. As this is the true nature of a partition, the contention that partition of an undivided Hindu family property necessarily means transfer of the property to the individual coparceners cannot be accepted.' 'The object of Section 14(6) is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. Where the right to evict a tenant could not be claimed by a landlord under Section 14 (1)(e), the legislature thought that the landlord should not be permitted to create such a right by adopting the device of transferring the premises to a purchaser who may be able to prove his own individual case under Section 14(1)(e). Having regard to the object intended to be achieved by 5.14(6), it cannot be held that a person who acquired property by partition can fall within the scope of its provision. In cases falling under Section 14(6), a person who had no title to the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. The position is entirely different in the case of a partition. It cannot, therefore, be held that allotment of one parcel of property to an individual coparcener as a result of partition is an acquisition of the property by transfer by the coparcener within the- meaning of Section 14(6).' 6. In (3) Smt. Roop Raj Laxmi Vs. State of Rajasthan & Ors., D.B. Civil Special Appeal No. 26/87, decided on 19.2.98 , after going through the scheme of the Act this court had held as under: i The concept of the term 'Family' in Chapter III-B is not to be connected with the term 'joint family' as known to be in Hindu Law. ii Chapter-111-13 governs all persons irrespective of their religion or community. ii Chapter-111-13 governs all persons irrespective of their religion or community. iii The lands may be held by Hindus or persons belonging to other religions and all of them are equally governed by the provisions of the Ceiling Law contained in Chapter III-B. iv The concept of joint family is totally foreign to the personal laws of Muslims, Christians and other communities. v Therefore, the expression 'family' used in part III cannot be equated to or connote an undivided family as known to the Hindu Law or that after partition had taken place in respect of a 'Hindu Family'. vi The term 'family' under Chapter-III does not treat the children or grand children, who are not dependent, as members of the 'family' for purposes of ceiling law. vii Therefore, the circumstances that a partition has taken place disrupting the joint family consisting the father and minor sons has no relevance for determining and calculating total holdings of the person. viii The 'family' for the purposes of ceiling law in part-III is a separate unit consisting of the persons contained in the definition. In other words, the term 'family' as defined in part-III is for the purpose of determination of excess of ceiling area. Under definition of the 'family' contained in section 30-B part-III of the old Ceiling law a person, his wife, their children and grand children being dependent and widowed mother of the husband so dependent upon them would constitute 'family'. It was further held in Roop Raj Laxmi's case (supra) that the provisions contained in Hindu Succession Act shall have no effect on the term 'family' contained in Chapter-III of the old Ceiling Law under the Tenancy Act in view of sub-section 2 of Section 4 of the Hindu Succession Act, which section reads as under: 4(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. 7. 7. It was further laid down that Rule 17(2) and 17(4) of the Rules of 1973 framed under the Rajasthan Land Ceiling Act do not contain any provision which runs counter to the definition 'family', rather they supplement the definition so as to include the share of land of such member who is a constituent of the family. While deciding a ceiling matter under the old Ceiling Law, the concept of 'family' contained in section 30-B should not be treated as Hindu Undivided Family and this distinction must be kept in mind, and that the definition of the term 'family' given under the Act has to prevail and excess land has to be determined as per the said definition. 8. As a matter of fact, in my opinion, the case of Roop Raj Laxmi (supra) is reiteration of the law as laid down by the Apex Court in the case of (4) State of Maharashtra Vs. Wasudeo and another, AIR 1991 SC 978 , (supra) wherein it was held that the paramountcy of Section 4 of the Land Ceiling Act is to prevail and it was further observed that the High Court had not taken any logical view to any of the provision that partition effected through court decree has the effect of diminishing surplus area by giving two separate units to the father and son respectively. The order of the High Court was not approved. 9. Admittedly, the case of the petitioner is to be dealt with in accordance with the old law as has been held by the Full Bench of this court in (5) Banshidhar and others Vs. State, AIR 1977 Raj. 46 and as per the provisions of Section 4 of the New Act, wherein it is mentioned that the ceiling area applicable to any person or family in accordance with Section 4 if exceeds to the ceiling area to such person or family in accordance with the provisions of law repealed in that case ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed law. 10. Division Bench of this court in Roopraj Laxmi's case (supra) and also in Amb Singh's case had laid down the principles that the scheme of the Act and Chapter III-B has been well explained in the case of (6) Amb Singh and others Vs. 10. Division Bench of this court in Roopraj Laxmi's case (supra) and also in Amb Singh's case had laid down the principles that the scheme of the Act and Chapter III-B has been well explained in the case of (6) Amb Singh and others Vs. SDO Bhinmal 1986(1) RLR 706 holding that: 'Section 30-D recognises only the transfer (i) by way of partition, or (ii) in favour of a landless person upto 1.4.66. All other transfers made after 25.2.1958 according to this Section, are considered as the transfer calculated to defeat the provisions of Chapter III-B of the Rajasthan Tenancy Act and they cannot, therefore, be recognised or taken into consideration for determining the ceiling area. Section 30-DD of the Act is further exception to Section 30-D and recognises only two types of transfers made in favour of agriculturist domiciled in Rajasthan, son or brother intending to take to the profession of agriculture, attained the age of majority and capable of cultivating the land personally. Section 30-DD does not recognise division of the land by way of partition. The division of land between the co-tenants or co-owners by way of partition for the purpose of ceiling law under Section 30-D has been recognised upto the notified date only. The partition made between the co-tenants after 1.4.66 though valid, cannot be considered for the purposes of determining the ceiling area applicable to a person or a family. The object with which the ceiling law was enacted, the scheme of the Act and the construction of the provisions contained in Chapter III-B clearly indicate that a partition made after April 1, 1966 cannot be considered or recognised for the purpose of determination of the ceiling area of a person under Section 30-C read with Section 30-E of the Act. The crucial date for consideration of the partition is the notified date, i.e. April 1, 1966 and the partition effected after this notified date is of no avail to the appellants either under Section 30-D or under Section 30-DD." 'Section 30-DD does not deal with the partition. 'Partition' for the purpose of determination of the ceiling area is covered only under Section 30-D and the recognition given under the ceiling law for the purpose of determination' of ceiling area is only to those partitions which have been effected on or prior to the notified date, i.e. 1.4.1966. 'Partition' for the purpose of determination of the ceiling area is covered only under Section 30-D and the recognition given under the ceiling law for the purpose of determination' of ceiling area is only to those partitions which have been effected on or prior to the notified date, i.e. 1.4.1966. All other transfers, as per Section 30-D, except by way of partition or in favour of a person who was a landless person before the said date and continues to be so till the date of transfer, are deemed to be the transfers calculating to defeat the provisions of Chapter HI-B and cannot be recognised and taken into consideration. Section 30-DD recognises special type of transfers limiting to thirty standard acres, made by a person upto 31st day of December 1969.' 11. From the above narrated facts, it is clear that (i) the family stood defined in Section 30-B of Chapter 111 of the Tenancy Act; (ii) in the definition of family as has been held by Roopraj Laxmi's case, there is no question of considering any aspect of ancestral property or joint Hindu property or even . coparcenery property; (iii) the partition is not a transfer under section 30-DD; (iv) land holding of khatedar is to be seen as on notified date; (v) no benefit could be derived by the petitioner of the provisions of Rule 17(4). The rights and obligations have been created in the Act itself i.e. in the definition of the family. 12. Rule 17(4) only supplements the definition of family for the purpose of declaring the ceiling and not that any substantial right has been created under the said rule for diminishing the ceiling owned by the family. The rights and obligations have been created in the Act itself i.e. in the definition of the family. 12. Rule 17(4) only supplements the definition of family for the purpose of declaring the ceiling and not that any substantial right has been created under the said rule for diminishing the ceiling owned by the family. The true context of the rule 17(4) can be for adopting the procedure for declaration of the ceiling that if there is joint Hindu family consisting of a member and if that member has a separate property as well, his share in the joint Hindu family is to be clubbed with his share i.e. the share of a member of a family or individual member in the land held by Hindu Undivided Family or share in a family 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. The rule is to be read in furtherance of the aims of the Act vis-a-vis person or family and not for diminishing the surplus area of any khatedar or any family as he be holding on the notified date. 13. Chapter rII-B of the Tenancy Act, providing the ceiling of the land holder, prescribes the ceiling area for a family consisting of five or less than five members to be 30 standard acres and in case the members of the family exceeds 5, the ceiling area in relation thereto was to be increased for each additional member by 5 standard acres, so as to, that the total ceiling area applicable to such family does not exceed total 60 standard acres of land, meaning thereby that an individual or a family upto five members were entitled to retain 30 standard acres of land whereas each member of the family over and above was entitled to 5 standard acres of land subject to the total not exceeding 60 standard acres. The 'family' has been defined under Section 30-B i.e. consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent. The 'family' has been defined under Section 30-B i.e. consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent. The intention of the legislature was to make a provision of 5 standard acres for each of the family member dependent upon such land holder to the maximum being 30 standard acres over and above the permissible area of the family total being 60 standard acres and if any of the land holder declares that any of his son or any person mentioned in the family is not dependent upon him or is not dependent on the land held by him, he was to be excluded from the definition of 'family', but by no stretch of imagination it can be said that any such non-dependent person was entitled to any extra share in the land holders or can be treated as a separate unit or that such non-dependent person can be deemed to have a separate share under the Hindu Law or Coparcenary law under the Ceiling Law. The Succession Act, 1956 has taken care of this aspect in Section 4(2). It is immaterial to say that the land as entered on the notified date was either ancestral or not ancestral. The land of the khatedar was to be determined for the purpose of surplus area irrespective of the fact whether it is ancestral or not. No artificial definition or meaning can be attributed to the definition of family provided under the Act for the purpose of defeating the very purpose of declaration of ceiling. In case of joint Hindu Family property the same principle shall also be applicable. The law of ceiling does not discriminate so far the declaration of ceiling area is concerned between the property held by Hindu joint family or otherwise or any other religion or community. The land ceilings were bound to be declared as permissible as provided under section 30-C after taking into the definition of family. 14. In view of the above law and in view of the facts of the present case, it cannot be said that the authorities below had acted illegally in declaring the surplus area in the impugned order. The land ceilings were bound to be declared as permissible as provided under section 30-C after taking into the definition of family. 14. In view of the above law and in view of the facts of the present case, it cannot be said that the authorities below had acted illegally in declaring the surplus area in the impugned order. Even though there is no evidence led that the property was ancestral, but even the ancestral nature of property does not give any right of the deemed partition on 1.4.1966. This conception of law has been held to be proper by the Supreme Court in State of Maharashtra Vs. Wasudev (supra). 15. In the case of (7) Kesa Vs. The State of Rajasthan 1987(1) RLR 449 =1987 RLW 1 , a Full Bench of this court has held that there is no necessity to issue any notice to the transferee and, therefore, the contention of the petitioner that notice ought to have been issued to the transferees as well, has no merits. 16. A Full Bench of this court in the case of Banshidhar and others Vs. State AIR 1977 Raj. 46 had held that the proceedings once initiated had to be culminated under the old ceiling law i.e. under Chapter III-B of the Tenancy Act. 17. In view of the above discussion and clear law laid down, I do not find any merit in the writ petition. No illegality is found in the orders impugned. The writ petition is dismissed. No order as to costs.Petition Dismissed. *******