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Rajasthan High Court · body

2000 DIGILAW 244 (RAJ)

Prem Narain & 3 Anr. v. The State Of Rajasthan

2000-02-23

J.C.VERMA

body2000
JUDGMENT 1. 1. The State Government exercising the powers under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (here-in-after referred to as the Act) had reopened the matter of the ceiling proceedings of the petitioners who are the heirs of Dev Karan of village s Sorkhand Khurd District Kota and after issuing notice to the parties, the Additional Collector Baran vide its order dated 31.1.1985 (Annexure-2) had found that the assessee was in possession of 47 standard acres of land on 1.4.1966 and there were six members of the family and after leaving 35 standard acres as permissible area, the remaining 12 standard acres of land to was declared to be surplus under the ceiling Act for the purpose of acquisition under the Act. The order dated 31.1.1985 was challenged before the Board of Revenue by way of an appeal and the Board of Revenue vide order dated 1.7.1987 (Annexure-3) dismissed the appeal. 2. It was the contention of the petitioner before the Board of Revenue that the land was ancestral coming from Mathura Lal, father of Dev Karan, the assessee and there was a deemed partition of the share of the petitioners in the property. A decree of partition was also relied upon. It was further mentioned that on 1.4.1966 Prem Narain and Madan Mohan were major sons. In Annexure-2 the order of the Additional Collector, it has been mentioned that in the return filed by said Dev Karan, the assessee, the age of Prem Narain has been mentioned to be 18 years whereas that of Madan Mohan has I been mentioned as 15 years as on 1.4.1966. Partition suit filed in the year 1965 was held to be ignorable in view of law of ceilings under the statute. It was further observed that no evidence was produced by the parties to show that the land in question was ancestral. It was further found that the transfer made in the name of minor was also not in accordance with law and transfer had been made only to defeat the purpose, aims and objects of the ceiling law. 3. It was further observed that no evidence was produced by the parties to show that the land in question was ancestral. It was further found that the transfer made in the name of minor was also not in accordance with law and transfer had been made only to defeat the purpose, aims and objects of the ceiling law. 3. Dev Karan was holding the land in village Sorkhand in his personal capacity and Sorkhand Khurd to the extent of 25.46 and 19.42 standard acres and in combination with others in village Sorkhand Kalan to the extent of 1.44 and 0.68 standard acres, the total being 47 standard acres. As per the report filed by the Khatedar Dev Karan, there were six members in the family. Preen Narain was of 18 years. It was stated that the land was partitioned in his favour in the year 1965, but for the reason that the property in question was not ancestral, there was no question of taking into consideration such a partition. Madan Mohan was found to be minor 'and after leaving 35 standard acres, the remaining 12 standard acres were declared as surplus. It is stated in the reply filed by the respondents that the aforesaid decree dated 18.12.1965 was obtained for the purpose of defeating the provisions of law. Further objection has been taken in the reply that the land was not found to be ancestral, the matter cannot be re- apprised in the writ jurisdiction. None of the petitioners had appeared before the authority when the notice was issued to reopen the case under section 15(2) of the New Act and, therefore, no objection can be taken by the petitioners in this regard at this stage. 4. It is the contention of the petitioners that the authorities below should have considered the decree passed in December 1965 in regard to the land in question i.e. the partition decree. It is also the contention that the sons had got share in coparcenary property and, therefore, the sons should have been given a separate share i.e. the property should have been divided amongst the coparceners as if it was a deemed partition and only then the land should have been declared as surplus if any. 5. It is the further submission that the petitioner Nos. 5. It is the further submission that the petitioner Nos. 1 and 3 were married and were major on 1.4.1966 and, therefore, they were entitled to separate shares. it is further submitted that the courts below should have drawn a presumption that the land was ancestral and in that situation the right of the sons to have deemed partition or a partition which had taken place by a decree of the court in December 1965. 6. In the case of Ambsingh v. Sub-Divisional Officer, Bhinmal, RLW 1986 P. 250 , it was held by this court that where the land is held by more than one person as co- tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether its division has or has not actually taken place. It was further held that ignoring partition taking place on 21.1.1968 by the SDO was justified. It was held as under:- "The question that arises for consideration in the present writ petition is as to whether the partition which is said to have been taken place on January 21, 1968 can be made the basis for determining the ceiling area of the petitioner. In the Jama Bandi of S.y. 2001 the total land in question was entered in the name of both the petitioners. This means that on the appointed day i.e. on April 1, 1966 the total land stood in the name of the petitioners jointly. The extent of the ceiling area of each of the petitioners is to be determined with reference to the appointed date i.e. April 1, 1966. It has not been found by the Ceiling Authorities that oral partition had already taken place in the. year 1958 and the petitioners were in separate possession of the land under the oral partition what has been found is that the land continued to remain recorded jointly in the name of both the petitioners upto Samvat year 2025 and it was only on January 21, 1968 that a partition deed was executed in the Bahi." 7. The above S.B. decision was affirmed by the Division Bench as reported in 1986(1) RLR 706. 8. The above S.B. decision was affirmed by the Division Bench as reported in 1986(1) RLR 706. 8. In the case of State of Maharashtra v. Wasudeo and another, AIR 1991 SC 978 , where a decree was passed holding that his son was entitled to half share in the property, it was said.that it would not reduce the area of the land holder to that extent. The Act works on the appointed date and on that date the landholder was either a person individually or a Hindu Undivided Family represented by him. In the former case of being an individual the claim of his son to have his father's property partitioned could never have arisen but in the later case of being a Hindu Undivided Family such a claim was valid. Nonetheless Section 4 imposes a prohibition even in the case of Joint Hindu Families from holding land in excess of ceiling area. Section 8 nowhere takes away the paramountcy of Section 4. It was held as under:- "We have heard learned counsel. We are of the view that the High Court, with due respect, fell into an error in dominating S. 8 of the Act and interpreting it in isolation of other provisions of the Act and in particular S. 4 which provides that no person shall hold land in excess of the ceiling area as determined in the manner provided in the Act. As said before the Act works on the appointed date and on that date Wasudeo was either a person individually or a Hindu Undivided Family represented by him. In the former case of being an individual the claim of his son to have his father's property partitioned could never have arisen but in the later case of being a Hindu Undivided Family such a claim was valid. Nonetheless S. 4 imposes a prohibition even in the case of Joint Hindu Families from Holding land in excess of ceiling area and it is on that basis that the excess surplus land becomes available to be forfeited to the State under other provisions of the Act. Nonetheless S. 4 imposes a prohibition even in the case of Joint Hindu Families from Holding land in excess of ceiling area and it is on that basis that the excess surplus land becomes available to be forfeited to the State under other provisions of the Act. S. 8 prohibiting that no person who on or after appointed date holds land in excess of ceiling area, shall on or after that date transfer or partition any land, until the land in excess of ceiling area is determined under the Act, facilitates the determination of the surplus area unhindered by any division of land by act of parties intervivos, as goes the Explanation, but nowhere takes away the paramountcy of S. 4 of the Act. We find that in the judgment of the High Court though reference thereto has been made to the plenary character of S. 4 yet no logical view is taken to come to the conclusion that partition effected through Court decree has the effect of diminishing surplus area by giving two separate units to the father and son respectively. In this view of the matter we would prefer to have the matter re-examined by the High Court on all points afresh in the light of the observations made heretofore." 9. In the case of State of Raj. v. Shivdan Singh, 1977 RRD 233 , it was held by a larger bench of the Board of Revenue and reference was answered to the effect that in the event of a suit for partition during the life time of the father by or on behalf of the sons and daughters whether major or minor and a subsequent decree of the court, such of the plaintiffs as are members of the family within the meaning of Section 30-B of the Rajasthan Tenancy Act, 1955, would not cease to be the members of the Family and filing of the partition suit either before or after 1.4.1966 would not affect their status. It was held as under:- "To sum up, we come to the conclusion that it is only on the death of person that his tenancy rights can devolve by succession on his children, whether major or minor; there cannot be any devolution of tenancy rights during the lift-time of such a person. It was held as under:- "To sum up, we come to the conclusion that it is only on the death of person that his tenancy rights can devolve by succession on his children, whether major or minor; there cannot be any devolution of tenancy rights during the lift-time of such a person. It, therefore, follows that sons and daughters cannot claim partition of the holding of their father during of the latter's life time any suit filed for the purpose would be incompetent and any decree passed in such a suit would be null and void. Such sons and daughters, whether major or minor, if they otherwise dependent on the father would continue to be so dependent and the filing of a partition suit either before or after 1.4.66 and subsequent decree by the suit would not affect their status vis-a-vis the family of the father." "Our answer to the reference, therefore, is : "In the event of a suit for partition having been filed during the lift time of. the father, by or on behalf of the sons and daughters, whether major and minor, and subsequent decree of the court, such of the plaintiffs as are members of the family within the meaning of Section 30-B of the Rajasthan Tenancy Act, 1955, would not cease to be the members of the family.' 10. In the case of Ram Pratap & 3 others v. State of Raj. & Ors., RLR 1988(2) Page 520 , it was held that the dependent occurring in Section 33-B, minor sons could not be held to be the members of the family unless a definite finding was there that they were dependent. 11. Similar was the effect of Jugal Kishore & Ors. v. SDO Baran & Ors., RLR 1988(2) P. 595 , it was held as under:- "The word, `dependent' appearing in Section 30-B of the Act is of wider connotation. A child below 18 years of age by very reason of his or her age and relationship seeks support and maintenance from his or her parents. Legislature by using the word `dependent' also meant to include a major child who is unable to look after himself or support himself because of imbecility, deformity or other handicap or any other reason, whether a child is member of family or not. Legislature by using the word `dependent' also meant to include a major child who is unable to look after himself or support himself because of imbecility, deformity or other handicap or any other reason, whether a child is member of family or not. One need not be concerned with the question whether child is a minor or major for in either case according to the definition, he would be a member of the family if he is dependent on his parents." `In these circumstances, merely because Dhanraj was minor, he cannot be held to be member of the family unless a definite finding is there that Dhanraj was dependent to the petitioner, Radha Vallabh." 12. In the case of V.N. Sarin v. 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. 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 S. 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 S. 14(6), it cannot be held that a person who acquired property by partition can fall within the scope of its provision. Having regard to the object intended to be achieved by S. 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)." 13. In Smt. Roop Raj Laxmi v. 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 Ill-B is not to be connected with the term `joint family' as known to be in Hindu Law. (ii) Chapter-III-B 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. (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'. 14. 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 fixations of ceilings or for the devolution of tenancy rights in respect of such holdings." 15. It was further laid down that Rule 17(2) and 17(4) of the Rules of 1963 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 for the term `family' given under the Act has to prevail and excess land has to be determined as per the said definition. 16. 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 State of Maharashtra v. Wasudeo and another, AIR 1991 SC 978 . 16. 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 State of Maharashtra v. 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. 17. 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 Banshidhar and others v. 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 are applicable to such person or family will be the same as was under the provisions of the said repealed law. 18. Division Bench of this court in Roop Raj 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 Amb Singh and others v. 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 the profession of agriculture, attained the age of majority and capable of cultivating the land personally. 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 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 purpose 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 Ill-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 the 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 33-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. 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 III-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." 19. Section 30-DD recognises special type of transfers limiting to thirty standard acres, made by a person upto 31st day of December 1969." 19. From the above narrated facts, it is clear that (i) the family stood deemed in Section 30-B of Chapter III 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. 20. 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) is that 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 the share i.e. the share of a member of a family or individual member in the land held by Hindu Undivided Family or share of 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 viz-a-viz person or family and not for diminishing the surplus area of any khatedar or any family as he be holding on the notified date. 21. The rule is to be read in furtherance of the aims of the Act viz-a-viz person or family and not for diminishing the surplus area of any khatedar or any family as he be holding on the notified date. 21. Chapter Ill-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 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 created as a separate unit or that such `not 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 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 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. 22. 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 interpretation by the Supreme Court in State of Maharashtra v. Wasude v (supra). 23. For the above-said reasons and discussion, no illegality has been committed by the Court below and I do not find any merit in the writ petition and the same is dismissed with no order as to costs.Writ Petition dismissed. *******