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2005 DIGILAW 1827 (RAJ)

State of Rajasthan v. Jabar Singh

2005-07-19

R.S.CHAUHAN

body2005
Judgment 1. This appeal is directed against the Judgment of learned Single Judge dated 24.02.1997 by which the learned Single Judge has allowed the writ petition and set aside the order passed by the Board of Revenue. 2. The matter relates to determination of share of land of deceased Ranjeet Singh under Chapter III-B of the Rajasthan Tenancy Act, 1955. The relevant date for consideration of determining the ceiling area applicable to a person and for determination of surplus land, if any, held by him is 01.04.1966. 3. Ranjeet Singh had filed a return in the first instance claiming that his family consists of himself and his seven sons and total holding of the land is 464 Bigha and 9 biswas of different types of land. He has also detailed the land which was actually partitioned between himself and his sons on 112.1963. The partition deed was founded on the premise that the land is held by Ranjeet Singh from the time of his ancestors, that is to say it was his ancestral estate and he also placed the details of the members of the joint family before the competent authority. 4. The competent authority in the first instance by its order dated 012.1978 held that the property in question was divided between himself and his seven sons and Ranjeet Singh cannot be said to be holding land in excess of ceiling limit. 5. The ceiling proceedings were reopened under Section 15(2) under the direction of State Government under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as the Act of 1973) pointing out that the S.D.M. has at initial stage not enquired into the matter fully and has not recorded the findings and necessary issues on the question of dependency of the members of the family was not decided. 6. In response to the directions issued under Section 15(2) of the Act of 1973, the proceedings for determination of ceiling under the Tenancy Act were re-initiated. The competent authority found that out of seven sons, two were minors as on 01.04.1966 and they are dependent and did not recognise partition on the ground that it was not registered. Consequently, Ranjeet Singh was found to be holding in excess of ceiling area and he ordered 32.75 standard acres land to be surplus, which need be acquired under the Act of 1955. 7. Consequently, Ranjeet Singh was found to be holding in excess of ceiling area and he ordered 32.75 standard acres land to be surplus, which need be acquired under the Act of 1955. 7. In appeal, the Board did not accept the partition solely on the ground of deed being un-registered and found that members of the family were 11 on 01.04.1966 and he was entitled to hold 60 standard acres of land, consequently, the surplus land was reduced to 22.75 standard acres. With this modification, the appeal was disposed of . 8. Learned Single Judge while referring to copy of the Jamabandi alongwith writ petition came to the conclusion that Ranjeet Singh was erstwhile Jagirdar. This fact is not in dispute and concluded that in view of the decision of this Court in Gopal Singh vs. State of Rajasthan, reported in 1983 RLW page 475, it must be held that there was a notional partition which took place on the appointed day i.e., on 01.04.1966 between the co-partioner of the family. Therefore, excluding the shares of his sons, there would be no excess land. 9. In this appeal, it has been contended by the learned Counsel for the appellant that plea of Ranjeet Singh being Jagirdar was not taken earlier and learned Single Judge has seriously erred in assuming Ranjeet Singh to be an erstwhile Jagirdar on the basis of “misal Bandobast” recorded from Samvat Year 2010 to 2019 produced alongwith appeal in which the land was recorded as “Khud Kast” land. He further argues that partition-deed being unregistered cannot be taken into consideration. 10. We find force in the contention of the learned Counsel for the appellant so far as it concerns the acceptance of fact that Ranjeet Singh was erstwhile Jagirdar and because of that reason alone, he came to conclusion that ratio laid down in Gopal Singh’s case (Supra), applies to it was erroneous. 11. Whether Ranjeet Singh was a Jagirdar and how his land was recorded as a Khud Kast land, whether it was ancestral, these were not subject matter of enquiry before the ceiling authorities. Nor any such enquiry was held by the learned Single Judge to examine the varacity of claim. We do not find any such admission of the respondent from which it could be assumed that the fact undisputed. Nor any such enquiry was held by the learned Single Judge to examine the varacity of claim. We do not find any such admission of the respondent from which it could be assumed that the fact undisputed. At best, the pleading alongwith copy of Jamabandi could have given ground for holding an enquiry in to the assertions. 12. However, from the deed of partition, on which the claim was lodged, that the sons of Ranjeet Singh had share in the property which was given to his sons in partitions, as well as in the order, it is clear that no enquiry was held into this aspect whether the property was ancestral and the sons had right title and interest in it by birth. If it was so, their shares in the land had to be taken as independent and the question of the dependency ought to have been considered and decided. 13. Unfortunately, this aspect of the matter was not enquired by the ceiling authorities at all. When partition is in lieu of pre-existing right it does not confer any independent right and recognition of right of every sharer to the extent of his share in the property as of right. The physical partition may divide the property by meats and bounds and has not lead to necessity of findings such right on notional basis. But the right of the member of the Joint Hindu Family in the ancestral property come into existence by birth and not dependent on partition. If partition has taken place, such partition qualifies and determines their respective rights. Even in case no partition has taken place, the right and interest in property at any given point of time has to be determined notionally with reference to property and number of members at such point of time having right to allotment of share in such property, assuming as if actual partition takes place at such point of time, which time in the present case is 01.04.1966, in case partition-deed is not accepted. 14. Moreover the position of a partition-deed to be registered and stamped in 1963 was different then what it is today. As on the date the partition-deed is stated to have been executed, the partition of ancestral Estate was permissible orally. If a deed was written in acknowledgment of oral partition made earlier, it was not compulsorily registrable under Section 17(1)(b). Moreover the position of a partition-deed to be registered and stamped in 1963 was different then what it is today. As on the date the partition-deed is stated to have been executed, the partition of ancestral Estate was permissible orally. If a deed was written in acknowledgment of oral partition made earlier, it was not compulsorily registrable under Section 17(1)(b). The principle was settled by a catena of decisions of High Court and had its approval by the Supreme Court in the case of Munna Lal (Dead) by LRs. vs. Suraj Bhan & Ors., reported in AIR 1975 SC 1119 wherein the Court said that document which simply acknowledges or makes an admission as to prior partition is not compulsorily registrable. 15. In this connection, reference may also be made in the case of Siromani & Anr. vs. Hem Kumar & Ors., reported in AIR 1968 SC 1299 wherein the Court accepted that when a partition of joint family property is affected by a written document, it is inadmissible in evidence specific shares allotted through it, but it is receivable in evidence to prove intention of co-parceners to become divided in status. 16. Both the Judgment s read together makes it abundantly clear that where partition of joint family is effected through a written document, it was compulsorily registrable but where it acknowledges earlier oral partition it was not compulsorily registrable. Moreover, in either case, the status of property as joint estate and respective rights of parties in such joint property remain uneffected. Even where the unregistered document may not be evidence of actual physical partition, it serves as a proof of actual severance of status. 17. We may notice that since above decisions, position of law has changed by amending the law, but since we are concerned with law as it existed on 1.04.1966 these decisions govern the case in hand. 18. Rejection of a partition-deed only on the ground of its being unregistered inhears a tacit admission of the fact that property is joint and but for want of registration, it was otherwise. 19. Be that as it may, without any such enquiry not considering the plea of partition was not at all justified. 9.20. 18. Rejection of a partition-deed only on the ground of its being unregistered inhears a tacit admission of the fact that property is joint and but for want of registration, it was otherwise. 19. Be that as it may, without any such enquiry not considering the plea of partition was not at all justified. 9.20. If the property is found to be ancestral, seed of which plea was very much there in the claim of partition and the document on which the reliance was placed for excluding the holding which had gone in share of sons, the further conclusion is apparent that each one of the coparcener had to be found to hold agricultural holdings to the extent of his share, whether actually partitioned or not, in the joint ancestral land and the question of dependence, including that of minor had to be decided on that anvil, before including the share of such members in fathers holdings for the purpose of ceiling proceedings of father. 21. The principle being well settled that in such a case if the shareholder is found to be minor, a presumption of dependency of minor may be raised but looking to the quantum of the property with him, the question of dependency still had to be decided. 22. Such presumption remains rebuttable. No such provision can be read in the case of major son. Therefore, in our opinion, the determination of ceilings area without inquiring into these matters and without recording the findings about the nature of the land and the nature of the rights claimed by the members of Ranjeet Singhs family whether as erstwhile Jagirdar or otherwise, the ceiling case could not have been decided. 23. In these circumstances, while coming to the conclusion that the order of the Board of Revenue and Additional Collector cannot be sustained but that was not enough to drop the proceedings unless finding is reached that the property was in fact ancestral after holding an enquiry into the matter and that the sons had necessary rights in property and also about their dependency on father, the ceiling case of Ranjeet Singh in the light of pleas taken by him could not have been decided. 24. 24. In view thereof , while we sustain the order of setting aside the orders of Additional Collector (Annexure-3) as affirmed by Board of Revenue (Annexure-4), we direct that the case be remitted back to the Additional Collector for deciding the case of the ceiling in the matter of Ranjeet Singh as on 01.04.1966 afresh by considering the aforesaid aspects of the matter. 25. The appeal is accordingly disposed of .