JUDGMENT 1. - By way of this writ petition the petitioners have sought relief for (1) quashing judgments of the Revenue Board dated 11.8.89 (Ann. M), Revenue Appellate Authority Kota dated 10.2.76 (Ann. C), S.D.O. Nainwa dated 30.4.75 (Ann.B); (2) declaring that the lands held by deceased Ridhkaran are not in excess of ceiling area applicable to him; (3) dropping proceedings initiated against him (Ridhkaran) now being represented by the petitioners under Old Ceiling law; (4) declaring that Jagdish Prasad, Vijay Kumar & Nirmal Kumar (petitioners herein) are entitled to be recognised as separate units under Old Ceiling law, thereby the lands held by them are not liable to be clubbed with those of deceased Ridhkaran. 2. The facts giving rise to this petition are briefly stated thus. Upon having not submitted a declaration u/r 9 of the Rajasthan Tenancy (Fixation of Ceiling on Land) (Government) Rules, 1963 (for brevity, Old Ceiling law), a notice u/r 10 of the Old Ceiling law was issued to Ridhkaran to furnish a declaration of his holdings and family members, to which he submitted such a declaration (Ann.A) to the Sub-Divisional Officer Nainwa on 10.3.1970, and upon which report of Tehsildar was called for u/r 12. Upon receipt of Tehsildar Hindoli's report, the SDO issued another notice u/r 14 to Ridhkaran. 3. In the declaration (Ann.A) it was a case of the petitioners that Ridhkaran was holding the land in dispute as Karta of joint Hindu Family consisting of himself & his three sons namely Jagdish Prasad, Vijay Kumar, Nirmal Kumar (petitioners herein); that this land in dispute was partitioned between deceased & his aforenamed three sons on 15.6.65; and his family consisted of wife Bhanwari Devi and his four daughter Gayatri, Sarla, Kanta & Sunita; and that separate declaration was fed recording co-sharers namely Nagarmal & Bhanwarlal. 4. Be that as it may, the Sub-Divisional Officer by his order dated 30.4.75 (Ann.B) clubbed all the lands acquired by deceased Ridhkaran, Nagarmal & Bhanwarlal measuring 1988 bighas 2 biswas plus 144 bighas 5 biswas = 2132 bighas 7 biswas, by holding that Nagarmal and Bhanwarlal were not holding their lands as benami for Joint Hindu Family of Rewatmal & Kesrichand because such a land stood recorded in the names of Ridhkaran, Nagarmal & Bhanwarlal, and without excluding the alleged transfer made in favour of Jagdish Prasad by deceased Ridhkaran on 29.5.70. The SDO further held that deceased Ridhkaran, Nagarmal & Bhanwarlal each were entitled to retain 30 standard acres of land and declared 486 standard acres of land as excess land for being liable to acquisition. 5. Against aforesaid SDO's order (Ann.B) the petitioners as well as Om Prakash & their other co-sharers or transferees, preferred an appeal before the Revenue Appellate Authority, Kota, which by his order dated 10.2.76 (Ann.C) accepted the appeal as to the determination of standard acres and imposition of penalty, but rejected the appeal on other grounds. However, the matter was remanded to the SDO to re-determine standard acres of land allotted to deceased Ridhkaran & his co-sharers. 6. A grieved by the order of the RAA (Ann.C) the petitioners & Om Prakash (transferee of deceased) so also Ridhkaran's co-sharer Nagarmal & his transferee Jethmal preferred revision petition Nos. 356/76 & 365/76 before the Revenue Board which by its common order dated 4.3.1977 (Ann.D) held number of family members as 5 as has rightly been arrived at by the revenue courts below, but as regards transfer of 32 bighas 16 biswas of land to Om Prakash, 46 bighas 19 biswas to Jethmal, the Revenue Board held that transfer of the land to Om Prakash was made after 31.12.1969 in 1970 and therefore could not be recognised whereas though transfer of 46 bighas 19 biswas to Jethmal was made by a registered deed on 24.12.1966 but the same was not proved that Jethmal was an agriculturist within the purview of Section 30DD of Rajasthan Tenancy Act, 1955 (for short the Tenancy Act). The Revenue Board further held that the transfer of 87 bighas 8 biswas of land by deceased Ridhkaran to his son Jagdish Prasad could not be recognised because of having no evidence treating the land so transferred as having fallen in any of categories covered u/s 30DD(2). 7. Again the petitioners dissatisfied with the Revenue Board's order in Revision Petitions (Ann.D) preferred review petition which was decided by order dated 19.7.77 (Ann.E) holding that Ridhkaran had only shown his four daughters as dependent upon him in the declaration while names of his three sons namely Jagdish, Nirmal Kumar & Vijay Kumar were not included in the family members and therefore deceased Ridhkaran could not claim that three sons were dependent on him being family members. Against orders (Ann.D & E) in revision & review petitions, the petitioners so also Nagarmal & Jethmal had preferred writ petition Nos. 200/78 and 14/78 which were partly allowed by this Court under its order dated 21.7.88 whereby order dated 4.3.1977 in revision petitions passed by the Revenue Board was partly set aside directing it to decide revision petition of deceased Ridhkaran but the transfer by Ridhkaran in favour of Badri Narain, Motilal & Om Prakash, as well as the sale by Nagarmal in favour of Jethmal were not recognised thereby invalidity thereof aforesaid transfers) was held conclusive & stood concluded by virtue of this Court's order dated 21.7.88. 8. After remand, the Revenue Board by its judgment dated 11.8.1989 (Ann.M) partly allowed both the revision petitions of the petitioner so also of Nagarmal & Jethmal, holding number of family members of Ridhkaran as eight and, therefore, allowed Ridhkaran & the petitioners to retain 45 standard acres of land but concomitantly remanded the matter to the SDO Nainwa directing him to recalculate standard acres on the basis of soil classification of the land in dispute as on 1.4.1996. However, the Revenue Board concluded that the plea of benami raised before the SDO & RAA is not tenable in view of the Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 as has been given retrospective effect by virtue of the decision of the Apex Court in Mithilesh Kumari v. Prem Behari Khare ( AIR 1989 SC 1247 ) and thus viewed, the Revenue Board held that the land given to three sons by virtue of partition of 1965 cannot be excluded because the sons did not have any interest in the land by birth, inasmuch as the partition of 1965 was nothing but a gift. Moreover the Revenue Board refused to recognise petitioners (Jagdish Prasad, Vijay Kumar & Nirmal Kumar) as separate' units. Ultimately, the Revenue Board declined to recognise the transfers made by Ridhkaran and Nagarmal and thus clubbed their lands with those of Ridhkaran. Hence this writ petition. 9. Moreover the Revenue Board refused to recognise petitioners (Jagdish Prasad, Vijay Kumar & Nirmal Kumar) as separate' units. Ultimately, the Revenue Board declined to recognise the transfers made by Ridhkaran and Nagarmal and thus clubbed their lands with those of Ridhkaran. Hence this writ petition. 9. A bare perusal of the order dated 21.7.88 of this Court in earlier writ petition No. 14/78 shows that Shri K.K. Mehrish learned counsel for the petitioner did not dispute correctness of the conclusion reached by the Board of Revenue that the transfers made in favour of Badrinarain, Motilal and Om Prakash were rightly ignored as not being valid on account of statutory provisions applicable. This Court's order (supra) further makes it clear that the petitioner's case was that three sons of Ridhkaran were entitled to be treated as a co-sharers by virtue of partition made in 1965 and that it had to be decided on this basis alongwith the fact that Ridhkaran's family comprised of six members namely himself, his wife and four daughters. On such a contention of the petitioner, this Court arrived at a conclusion that it was not Ridhkaran's case that his three sons were to be treated as dependent on him and therefore members of his family as mentioned in the order of the Board of Revenue. 10. This Court further concluded that the position with regard to the sale in favour of Jethmal was similar to that of other sales in favour of Badrinarain, Motilal, and Om Prakash in view of the finding of fact recorded by the Revenue Board. Thus, ultimately this court held that the conclusion of the Revenue Board to ignore all these four sales in two matters being invalid was justified and therefore, the matter relating to these four sales be treated as concluded. Here I deem it proper to quote operative result part of the remand order dated 21.7.88 of this Court (supra) as under : "As a result of the aforesaid discussion, we partly allow both these writ petitions and quash the impugned order dated 4.3.1977 passed by the Board of Revenue except in so far as it relates to holding the aforesaid four sales as void; and also the orders passed by the Board of Revenue dismissing the review petitions. We direct the Board of Revenue to decide both the revisions afresh with advertance to the above observations treating the matter of invalidity of the aforesaid four sales as concluded." 11. Now the decks are clear. The controversy involved for adjudication herein is restricted as to the impugned order dated 11.8.89 (Ann.M) of the Revenue Board passed after the remand order of this Court, quoted above, and that too with regard to Ridhkaran's case as to his three sons for being treated as co-sharers by virtue of partition made in 1965 or alternatively if not treated as separated by that partition, as members of Ridhkaran's family for making calculation. 12. Shri K.K. Mehrish learned counsel for the petitioners laid much stress that in view of the findings arrived at by this Court in remand order dated 21.7.88, the Revenue Board under the impugned order (Ann.M) ought not to have refused to recognise three sons Jagdish Prasad, Vijay Kumar & Nirmal Kumar) of Ridhkaran as separate units, inasmuch as the Revenue Board further omitted to consider the declaration form filed by Ridhkaran, which resulted in vitiating the impugned order (Ann.M). However, Shri K.K. Mehrish though conceded the stand of Ridhkaran having shown his three sons (named above) as members of his family but vociferuously contended that it was shown treating three sons as a separate unit for the purpose of assessment keeping in view Rule 17(4) of the Old Ceiling law. 13. While drawing attention of this Court to certain certificates of transfer or birth issued by respective schools where three sons allegedly used to study, it has also been urged by Shri K.K. Mehrish that from these birth & transfer certificates it stood established that sons & daughters of Ridhkaran (assessee) were born before 1.4.1996. Further it has been contended by Shri Mehrish that the partition made by Ridhkaran in favour of his sons was capable of being recognised u/s 30DD of the Old Ceiling Law and was not prohibited by Section 30D(1). 14. Section 30D of Chapter IIIB of the Old Ceiling Law provides for certain transfers not to be recognised for fixing ceiling area u/s 30C. Section 30DD of Chapter IIIB of the Old Ceiling Law provides for certain transfers to be recognised. 14. Section 30D of Chapter IIIB of the Old Ceiling Law provides for certain transfers not to be recognised for fixing ceiling area u/s 30C. Section 30DD of Chapter IIIB of the Old Ceiling Law provides for certain transfers to be recognised. Hence, this court has to adjudge the validity of the impugned transfer of the land in dispute only for the purpose of Chapter IIIB of the Old Ceiling Law and recognition of the transfer for determination of ceiling area, because adjudication as to the validity of such transfer under the Ceiling Law, old or new, is very restricted to the extent of its recognition under Chapter IIIB of the Old Ceiling Law in view of the provisions of Section 30E, under which the assessing authority is bound to enquire into the fact as to whether the lands being acquired are encumbered or not, as he is to acquire encumbered land only. It is trite law that transferred land is encumbered land though such transfer is not recognised by the ceiling law and thus the assessee must surrender unencumbered land. Further the transferor i.e. assessee must produce evidence to get the transfer recognised. The onus to prove transfer lies on the assessee and not on others. However, in order that a transfer is to be recognised either u/s 30D or 30DD it should be valid and effected by a registered document only. 15. As per school certificates, referred to by Shri Mehrish, Jagdish Prasad was born on 26.9.1950, Vijay Kumar on 20.3.1959, Nirmal Kumar on 6.6.1963, Sunita on 9.2.61, Kanta on 8.8.57, and Sarla on 7.12.52. It is admitted case of the petitioners that as per declaration filed by Ridhkaran, three sons who were born on 26.9.50, 20.3.59, 6.6.1963 respectively were shown as members of Ridhkaran's family on the one hand but on the other hand, it was also their stand that such was a position having been shown as a separate unit for being treated as co-sharers by virtue of partition made in 1965. But, curiously enough, in my considered opinion, the petitioners cannot be allowed to take somersault by blow hot and cold in the same breath. But, curiously enough, in my considered opinion, the petitioners cannot be allowed to take somersault by blow hot and cold in the same breath. Once it was the case of Ridhkaran in the declaration as to his three sons as separate unit by virtue of alleged partition made in 1965, then onus to prove such a partition as bona fide or recognised being valid for the purpose of ceiling proceeding, was on him (transferor). Mere declaration as to such a transfer stated therein is not sufficient to prove it as bonafide or recognised under old or new ceiling law. However, upon construction of such a declaration showing family members of Ridhkaran, so also affidavit of Jagdish Prasad, the Revenue Board in its judgment impugned herein (after remand) has rightly held that family members of Ridhkaran were eight for the purpose of determination of ceiling land. 16. If the ages of three sons (Jagidsh, Vijay & Nirmal) are taken into consideration, then it makes crystal that on 1.4.66 or before 31.12.69 or on the alleged date of partition made in 1965, either in favour of Jagdish on 15.6.1965 for transfer of 87 bighas & 8 biswas of land, or in favour of other sons Vijay & Nirmal by a gift or partition in 1965, itself, and of these troika sons were certainly not capable of cultivating land personally with a view to take to the profession of agriculture nor each of them can be held to have attained the age of maturity before appointed date i.e. December, 1969 as is provided in Section 30-DD of the Tenancy Act, which in my considered view is not attracted in the facts of this case as to the alleged partition on transfer of land in favour of these troika sons of Ridhkaran. 17. Maturity has to be adjudged in the context of Section 30DD(i) and not the majority of the transferee - son or brother of the assessee (transferor) as is contended by Shri Mehrish for the alleged transfer of 87 bighas 8 biswas of land by Ridhkaran in favour of Jagdish and the date of maturity will be taken into consideration as on the date of alleged transfer and not date i.e. December, 1969 as stated in Section 30DD which is the appointed date as to the transfer made on or before it, for holding or adjudging its recognition u/s 3ODD. Since it is the case of the petitioner Jagdish herein so also Ridh Karan before the authorised officer that transfer of land in dispute in favour of only Jagdish (supra) was made on 15.6.1965, but it has not been established by leading any evidence that on 15.6.1965 Jagdish was capable of cultivating land personally with a view to take to the agricultural profession and to show that he was landless person, as is the intention and object of the legislation of ceiling law as depicted in Section 30DD, itself. 18. Further, as is concurrent finding of fact arrived at by SDO Nainwa (Ann.B), RAA and Revenue Board, though transfer of land either by way of partition or gift in favour of either Jagdish only or three sons including Jagdish by Ridhkaran was pleaded in the declaration, as having taken place in 1965 but curiously enough, registered deeds whereof produced were of having been executed on 30.5.1970 or so but it depicts that these impugned transfers were of later date subsequent to date 31.12.69 i.e. appointed date as provided in Section 30DD. Thus viewed also, these impugned transfers cannot be held as recognised by virtue of Section 30DD and, therefore, cannot be allowed to be excluded while determining the area under ceiling law. 19. Once the impugned transfer of land by way of alleged partition or gift in favour of Jagdish alone and three sons of Ridh Karan as disclosed in the declaration is held to be not recognised u/s 30DD of old ceiling law, there trioka sons of Ridhkaran cannot be held as separate units, but except to hold them as family members totalling to eit, as rightly concluded by the revenue courts below on the appreciation of evidence consisting of declaration so also affidavit of Jagdish himself. 20. 20. Further, on the one hand it was the case of Ridhkaran that the agricultural land which was subject matter in ceiling proceedings initiated upon notice under old ceiling law was a joint hindu family property and on the other hand in reply to the notice under Rule 14 of the Ceiling Rules 1963 he had gone to raise objection that total land under ceiling proceeding in fact was taken on 20 years lease by Rewatmal, Kesri Chand & Ridhkaran but Ridhkaran, Bhanwarlal & Nagarmal were benami entered in the records, in support of whereof, only affidavit of Nagarmal & Bhanwarlal had been produced and no other evidence was adduced. Contrarily during ceiling proceedings on the basis of documents produced on record, it was categorically found that State Government (landlord) has given the land under ceiling process of 20 years lease as was depicted from the lease deed which was executed in favour of Ridhkaran, Bhanwarlal & Nagarmal, in whose name also the land stood recorded in the revenue records produced by the Tehsildar, as lease holder and above all, the revenue records proved their possession over the land in question so also cultivation having been done by them. 21. Rule 17 of the Rules, 1963 deals with lands held by undivided family, society etc. and as per its sub-rule (1), for the purpose of determining the ceiling area, all the lands held individually, by any member of a family, or jointly by some or all of the members of family, shall be deemed to be held by the family. Sub-rule (2) provides that in calculating the extent of land held by a family or by an individual person, the share of the member or of the individual person in the land held by a Hindu undivided family, shall be taken into account. Sub-rule (3) provides that in calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals. (whether incorporated or not) or by a company shall be taken into account. Sub-rule. Sub-rule (3) provides that in calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals. (whether incorporated or not) or by a company shall be taken into account. Sub-rule. (4) contemplates as under : "(4) the share of a member of a family or of an individual person in the land held by an Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company 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, on such date, or which in case such share is required in any manner whatsoever after the appointed date, would be allotted to such member, person or family if a partition or division were to take place on the date of determination of the ceiling area." 22. Be that as it may, first of all no clinching evidence has been adduced by the petitioners or Ridhkaran before the authorised officer to prove their case as to the land belonging either as benami or to a joint family or an HUF property and that being so not only the authorised officer but also appellate & revisional authorities have concurrently and rightly so, held that once the revenue records established entries and possession over the land under ceiling proceedings in the name of Ridhkaran, Bhanwarlal & Nagarmal not as an HUF property, therefore, such a land cannot be said to be benami or otherwise like ancestral one being partitioned before appointed date as pleaded by the assessee, and there was no benami transaction in existence being proved on record. Contrarily, Ridhkaran alongwith Bhanwarlal & Nagarmaf had 2132 bighas 5 biswas of land out of which Ridhkaran's share was 710 bighas 15 biswas of land as was supported by his own affidavit filed in SDO Court Nainwa on 12.3.1975, inasmuch as from the material on record, 144 bighas 5 biswas of land was held by Ridhkaran alone and 1988 bighas and 2 biswas of land was in joint khata of Ridhkaran alongwith Nagarmal & Bhanwarlal. 23. I am conscious of the principle that co-parceners are entitled to a right in the whole of the property and the co- sharers & co-tenants have a right of joint enjoyment of their joint property and further that partition of joint hindu family property cannot be regarded as transfer for the simple reason that every co-sharer or co-parcener has an antecedent right and title to the entire co-parcenery property though the extent of his right is not determined until partition takes place. 24. In the instant case, as rightly concurrently held by the revenue courts below, once the joint hindu family has not been proved by the petitioners or Ridhkaran (original assessee) during ceiling proceedings, then mere disclosure in the declaration as to the partition in question is insignificant, rather the theory of partition stood failed. Moreover, the document produced to establish theory of partition was merely a gift which has been used by the petitioners and Ridhkaran as partition deed and thus such a gift depicted rather proved that the lands in question disclosed in the declaration in ceiling proceeding were not at all established to be an HUF property so as to get it partitioned but by that document, as if it were gifted. That being so, in my considered view also, the revenue courts below have rightly held that as the gift of 87 bias 8 biswas of land by Ridhkaran to his son Jagdish has not been proved by a reliable evidence so as to treat it transferred being belonged to categories covered by Section 30DD(ii) of the Act, 1955 (old ceiling law) and therefore such a gift could not have been recognised. 25. 25. That apart, as is evident from the pleadings and admissions wrung out therefrom and referred to above, the impugned transfer or partition allegedly made orally in the year 1965, admittedly after appointed day 25.2.58 (as disclosed in Section 30-D), but having been effected by a registered document not only after 25.2.58 but also after appointed day December, 1969 (as envisaged in Section 30DD), otherwise than by way of partition, but by way of gift in favour of Jagdish or other sons, who may be landless persons but minor sons not capable of cultivating land personally, shall be deemed to be a transfer calculated to defeat the provisions of Chapter IIIB of the old ceiling law, which is covered by Section 30D and cannot be recognised u/s 30DD. Thus the land given to the three sons (Jagdish, Vijay & Nirmal) or even to Jagdish alone, by way of alleged partition or a gift of 1965 cannot be excluded and have rightly been clubbed together with while determining the ceiling area of Ridhkaran. 26. While construing the declaration as well as affidavit of Jagdish produced during ceiling proceedings so also revision petition of Ridhkaran, the Board of Revenue has rightly held family members of Ridhkaran as eight as on 1.4.66 because after due appreciation of evidence on record, it had already found that the sons had no land of their own, so they are to be treated as dependent on Ridhkaran. Hence, these three trioka sons of Ridhkaran (Jagdish, Vijay & Nirmal) cannot be held to be separate unit as pleaded by the petitioners herein, and transfers allegedly made by Ridhkaran have rightly been held as not recognised under the ceiling law. Thus I do not find any error of law in the impugned orders either by the Authorised officer or RAA or the Board of Revenue, which are under challenge in this writ petition. 27. Before parting with this order, I must hasten to add that after conclusion of the arguments, Shri K.K. Mehrish learned counsel for the petitioner moved an application on 21.12.2001 for substitution and bringing on record legal representatives of petitioner No. 3 Jagdish Prasad who died admittedly on 12.4.1996. 27. Before parting with this order, I must hasten to add that after conclusion of the arguments, Shri K.K. Mehrish learned counsel for the petitioner moved an application on 21.12.2001 for substitution and bringing on record legal representatives of petitioner No. 3 Jagdish Prasad who died admittedly on 12.4.1996. This application is belated having been filed after prescribed limitation and there has been delay of more than about five years and the reasons assigned for such delay are in my view not satisfactory and sufficient to condone it. Hence this application is dismissed. As a result of the above discussion this writ petition being devoid of merit is dismissed with no order as to costs. Petition dismissed. *******